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TREATISE 


ON    THE 


LAW  OF  SALES 


OF 


PERSONAL    PROPERTY. 


BY  FRANCIS  BILLIARD, 

AUTHOR    OF    "an    ABRIDGMENT    OF    THE    AMERICAN    LAW    OP 
REAL    PROPERTY." 


"^^y^^ 


NEW  YORK: 
HALSTED   ANDVOORHIES 

1841. 


Entered  according  to  Act  of  Congress,  in  the  year  1841,  by 
HALSTED  &  VOORHIES, 

in  the  Clerk's  office  of  the  District  Court  of  the  District  of  Massachusetts. 

T 


E.    AND    L.    MERRIAM,    PRINTERS, 
BROOKPIELD,    MASS. 


PREFACE. 


The  following  work  has  been  compiled,  in  conse- 
quence of  a  strong  conviction  in  the  mind  of   the 
author,  that  a  full  and  complete  treatise  upon  the 
subject  herein  considered,  embodying  both  the  Eng^ 
lish  and  American  decisions,  was  a  desideratum  to 
the  American  lawyer.     This  impression,   previously 
very  decided,  was  much  confirmed  by  a   remark  of 
the  learned   Editor  of  Long  on  Sales,  that  his  desire 
and  first  intention  was,  to  prepare  an  original   trea^ 
tise,  instead  of  a  new  edition  of  the  English  work, 
but  that  he  was  prevented  from  doing  so  by  the  presr 
sure  of  professional  engagements  ;  and   by  an  obser- 
vation of  the  reviewer  of  that  work  in  the  American 
Jurist,  to  the  eflfect  that  another  book  upon  the  sub- 
ject was  still   much  needed  by  the  profession. ,   The 
general  plan  of  the  treatise  is  similar  to  that  of  the 
author's  work  upon  Real  Property;  for  the  favorable 


€ir:fi  I  cif\ 


PREFACE. 


reception  of  which,  he  takes  this  occasion  to  express 
his  thanks  to  his  brethren  of  the  bar  in  many  diffe- 
rent States  of  the  Union  ;  accompanied  by  the  hope, 
that  the  present  work  will  receive,  and  still  more 
that  it  may  be  found  to  deserve,  the  same  liberal  en- 
couragement at  their  hands. 

Boston,  Marchy  1841. 


CONTENTS. 


TABLE  OF  CASES  CITED  -  -  xix 


CHAPTER  I. 

GENERAL  PRINCIPLES  RELATING   TO  SALES  OF 
PERSONAL  PROPERTY. 

Sect.  I. — What  constitutes  a  sale — payment,  delivery,  Sfc, 

1.  General  principles  and  dicta       -                 -                 -  2 

21.  Sale  devests  the  vendor  of  all  title        -                 -  6 

23.  Re-sale  by  vendor,  with  vendee's  consent  -                 -  ib. 

25.  Sale  of  several  articles  together,  one  contract     -  7 

26.  After  sale,  vendor  not  liable  for  loss,  &c.  -  -  ib. 
28.  Order  for  goods  passes  the  property  -  -  8 
30.  Exchange  -  -  -  -  -  ib. 
32.  Law  implies  a  sale,  when    -                 -                 -  9 

34.  Whether  a  contract  is  completed,  is  a  question  for  the 

jury        -                -                -                "                -  lb. 

35.  Manufacture  of  goods  to  order              -                 -      .  10 

36.  Exchange  of  securities,  no  sale  -                 -                 -  ib. 

37.  Deviation  from  the  contract — no  action  lies  -  ib. 
39.  Transfer  by  act  of  law                -                -                -  ib. 


vi  CONTENTS. 

PAGE 

41.  Sale  of  a  thing  not  in  existence  at  the  time        -  11 
Sect.  IT. — Payment  of  Earnest. 
Sect.  III. —  Whether  a  contract  is  a  sale  or  a  bailment. 

1.  General  points  of  distinction,  and  decided  cases         -  15  , 

8.  Contracts  of  sale  or  return  -  -  ^'^ 

Sect.  IV. — Conditional  Sale. 

1.  General  principle        -  -  -  -  18 

2.  Effect  of  delivery  upon  the  condition  -  ib. 

3.  Evidence    -  -  -  -  -  ib. 

4.  Mortgage  or  conditional  sale,  whether  -  ib. 

7.  Decided  cases,  construction  of  contracts   -                 -  19 
18.  Mortgage  of  chattels            -                -  22 

Sect.  V. — Eject  of  a  sale  hy  one  not  owning  the  property  sold 
— market  overt,  Sfc. 

1.  Sale  in  market  overt    -  -  -  -  23 

8.  Sale  by  a  bailee  or  other  person  having  possession  with- 

out title  -  -  -  -  24 

11.  Sale  of  property  captured  or  wrecked  -  25 

Sect.  VI. — Construction  of  sales. 

1.  Contracts  executed  and  executory  -  -  26 

18.  Miscellaneous  cases  .  -  -  34 

30.  Evidence  used  in  the  construction  of  contracts  -  38 


CHAPTER  II. 

PARTIES  TO  THE  CONTRACT  OF  SALE. 

Sect.  I. — Married  Wome7i. 

1.  General  principle  as  to  the  capacity  of  contracting  -       43 

2.  Married  women — general  disability                      -  ib. 

3.  Liability  of  the  husband  for  goods  sold  to  the  wife  -       ib. 
11.  Liability  of  the  wife            -                                  -  46 


CONTENTS.  VU 

Sect.  II. — Infants.  page 

1.  Their  liability  for  necessaries       -                -                -  47 

4.  Liability  of  the  father            -                 -                 -  48 

7.  Contract  of  an  infant  not  void,  but  voidable                 -  ib. 

Sect.  III. — Idiots,  Lunatics,  Sfc. 

1.  Idiots,  lunatics,  &c.     -                 -                 -                 -  50 

2.  Duress  -----  51 

3.  Alien  enemies               -                -                -                -  ib. 

Sect.  IV. — Agents,  Factors  and  Brokers. 

1.  General  rules;  the  principal  is  the  real  party              -  51 

4.  General  and  special  agents  -                  -                  -  52 

5.  Agency  cannot  be  delegated       -                 -                 -  53 

6.  Agent,  how  appointed  ;  express  and  implied  authority  ; 

extent  of  authority                   -                 -                 -  53 

20.  Admissions,  &c.  of  agent    -                 -                 -  56 

21.  Revocation  of  an  agent's  authority              -                 -  57 

22.  Principal,  whether  liable,  if  credit  were  given  to  the 

agent ;  agent's  liability  ;  public  agents  ;  ship-owner 

and  master               -                 -                 -                 -  ib. 

33.  Suit  by  an  agent  against  the  principal,  as  purchaser  60 

35    Principal  responsible  for  fraud  of  agent      -                 -  61 

36.  Sales,  &c.  by  brokers           .                 .                  -  62 

41.  Bought  and  sold  notes                  -                 -                 -  63 

45.  Sale  by  wharjingers,  &c.    -                 -                 -  64 

46.  Proceeds  of  property  sold  by  agent,  belong  to  principal  ib. 

47.  Sale  by  trustees,  executors,  &c,  -  -  ib. 
53.  Under  an  order  of  Court,  or  legal  process  -  66 
63.  Sales  by  or  to  partners                -                -                -  68 


CHAPTER  111. 
DELIVERY  AND  ACCEPTANCE. 

Sect.  I. — General  principles  and  exceptions  thereto, 
1.  Delivery,  in  what  points  of  view  material — general 

principles  -  -  -  -       75 


Vin  CONTENTS. 

PAGE 

2.  Formal  delivery  unnecessary,  when                  -  76 
4.  Constructive  delivery ;  ponderous  articles                 -  76 

10.  Marking  the  vendee's  name               -                -  78 

14.  Sale  by  a  tenant  in  common      -                -                -  ib. 

15.  The  vendee's  dealing  with  the  property  as  his  own  79 

16.  Sale  of  goods  under  attachment  -  -  ib. 
20.  Sale  before  attachment,  without  delivery  -  80 
24.  Order  upon  a  depositary            -                 -                 -  81 

32.  Transfer  in  the  dock-books                -                -  84 

33.  Delivery  of  store-keeper's  receipt             -                 -  ib. 

34.  Of  an  invoice  -  -  -  -  ib. 
36.  Of  a  key  -  -  -  -  -  ib. 
38.  Lease  of  the  building  in  which  goods  are  kept-  85 
40.  Sale  to  one  already  in  possession  -  -  ib. 
46.  Indorsement,  &,c.  of  bill  of  lading  -  -  87 
54.  Notice  to  a  third  person,  having  possession  -  89 
69.  Sale  by  one  tenant  in  common  to  another  -  90 
61.  Property  borrowed  by  the  vendor,  &c.  -  -  91 
63.  Constructive  delivery,   where  the  vendor    retains 

possession        .  .  -  - 

74.  Part  delivery              -                 -                 -                 -  94 

84.  Delivery  of  a  sample  -  -  -  96 
86.  Conditional  delivery;  when  a  condition  of  the  sale 

is  waived  by  delivery,  &c.      -                 -                 -  97 
98.  Conditional  sale,  and  delivery  for  an  intermediate 

purpose            _                -                -                -  101 

100.  Delivery  to  a  carrier,  &c.         -                -                -  102 

Sect,  II. — Necessity  of  delivery  in  relation  to  creditors,  Sfc. 

1.  General  doctrine                   -                 -                 -  106 

3.  Distinction  between  absolute  and   conditional  sales, 

&c.         -                -                -                -                -  107 

4.  Decided  cases    -                -                 -                -  ib. 

19.  Sale  of  goods  not  in  the  vendor's  possession               -  112 

20,  Change  of  possession,  what  is              -                -  ib. 

23.  Evidence  to  rebut  fraud              -                 -                .  -  ib. 

24.  Possession  taken  after  the  sale             -                -  ib. 


b. 


CONTENTS.  IX 

PAGE 

25.  Execution  sales         -                 -                -                -  112 

26.  Purchase  with  another's  funds,  &c.    -                 -  113 

30.  Successive  conveyances  to  two  creditors     -                 -  ib. 

31.  Notice  to  a  particular  creditor             -                 -  114 

32.  Property  incapable  of  delivery    -                 -                 -  ib. 

33.  Fraud,  whether  a  question  of  law  or  fact             -  ib. 
Sect.  III. — Effect  oj  a  sale,  where  any  thing  remains  to  he  done 

to  the  thing  sold  by  the  vendor. 

\.  General  principle  and  decided  cases            -                 -  115 

15.  Delivery,  with  a  conditional  agreement  to  take  back  121 

17.  Exceptions  to  the  general  rule             -                 -  122 

Sect.  IV. — Delivery  to  one  of  ttoo  purchasers  from   the  same 

vendor. 

Sect.  V. — Sale  of  shijjs  at  sea,  <5'c. 
Sect.  VI. — Delivery  obtained  by  fraud. 
Sect.  VII. —  Time  and  place  of  delivery. 

1.  Agreement  to  deliver  at  a  certain  time  and  place       -  130 

3.  Agreement  to  deliver  without  specifying  time  and 

place       -----  131 

4.  Time  of  delivery                  -                 -                 -  ib. 
10.  Place  of  delivery         -                 -                 -                 -  132 

Sect.  VIII. — acceptance. 


CEIAPTER  IV. 

THE  PRICE  OF   GOODS  SOLD,  AND  PAYMENT 
THEREOF. 

I.  Price  necessary  to  a  sale — how  it   may  be  fixed — rea- 
sonable price  .  .  -  .     144 
6.  Payment — by  negotiable  securities,  which   are  dishon- 
ored ;  whether  the  vendor  may  sue  for  the  price,  or 
reclaim  the  goods,  &c.            -                 -  -     145 
19.  Payment  by  other  securities                  -  •               -  149 
21.  Sale  from  debtor  to  creditor       -                 -                 -     150 


CONTENTS. 


PAGE 


23.  Agreement  to  pay  by  bill,  &c.— how  construed  150 


CHAPTER  V. 

SALE  ON  CREDIT. 

1.  Credit  must  be  strictly  proved   -                 -  -     161 

2.  When  an  agreement  for  credit  is  not  binding  -               ib. 

4.  Contract  of  sale  or  return           -                 -  -     152 

5.  When  a  credit  expires         -                 -  -               ib. 
7.  Agreement  to  pay  by  bill,  &c.  on  time  ;  when  an  ac- 
tion lies  immediately               -                -  -       ib. 

18.  Election  as  to  credit            -                .  -             154 

25.  Commencement  of  suit,  time  of                 -  -     156. 


CHAPTER  VI. 

SALES  AT  AUCTION. 

Sect.  I. — What  constitutes  an  auction  or  a  sale  at  auction. 
1.  What  is  an  auction     -  -  -  -     158 

6.  What  is  an  auction  sale       -  -  -  159 

7.  Purchase  of  several  articles,  whether  one  contract    -       ib. 

Sect.  II. —  The  statute  of  frauds,  as  applicable  to  auctions. 

Sect.  III. — Rights,  duties  and  liabilities  of  auctioneers,  par- 
ticularly in  relation  to  deposits. 

1.  Consequences  to  the  auctioneer  of  violating  his  duty  162 

4.  Rescinding  of  sale  by  an  auctioneer           -                  -  163 

6.  Safe  keeping  of  goods         -                 -                 -  ib. 

7.  Liability  to  true  owner  of  goods  sold         -                 -  ib. 

8.  Delivery  without  payment  -                 -                 -  ib. 

9.  Rights,  &.C.  in  regard  to  deposits                *                 -  ib. 

18.  Personally  liable,  where  the  principal  is  unknown  165 

19.  Action  against  a  purchaser         -  -  -       ib. 


CONTENTS.  XI 

Sect.  IV. —  What  avoids  an  auction  sale. 

PAGE 

1.  Misrepresentation       -  .  -  -     167 

8.  Puffing  -  -  -  -  169 

26.  Unfair  means  to  reduce  the  price  -  -     174 


CHAPTER  VII. 

LIEN. 

1.  General  principle ;  distinction  between  sales  of  chat- 
tels and  of  land  ;  lien  depends  on  possession  ;  when 
lost,  notwithstanding  possession ;  whether  the  right 
continues  against  a  second  purchaser    -  -     176 
21.  Effect  of  part-delivery  upon  the  right  of  lien  -  182 
24.  Sale  on  credit             _                _                -  -     183 
27.  Waiver  of  a  lien                ,                -                -  184 
29.  Lien  between  part-owners          -                -  -    185 


CHAPTER  VIII. 

STOPPAGE  IN  TRANSITU. 

1.  General  doctrine;  the  right  of  stoppage  compared 

with  that  of  lien,  and  a  rescinding  of  the  contract ; 

history  of  the  law  upon  the  subject;  Courts  of  law 

and  equity,  jurisdiction  of      -  -  -     187 

5.  How  and  when  it  may  be  exercised  -  -  188 

7.  By  what  kind  of  delivery  defeated  -  -     189 

27.  Paramount  to  liens  against  the  vendee  -  194 

28.  Continues  while  any  act  is  to  be  done  by  the  vendor     195 

34.  Knowledge  by  the  vendor  of  the  vendee's  insolvency   197 

35.  Waiver  of  the  right  of  stoppage  -  -       ib. 

36.  Transittis  ends,  when  the  goods  arrive  at  their  des- 

tination -  -  -  -  -       ib. 


Xll 


CONTENTS. 


PAGE 

33.  Arrival  at  a  warehouse  or  other  depository      -  198 

44.  Arrival  at  an  intermediate  place                -                 -  199 
48.  Possession  taken  by  the  vendee  before  the  end  of  the 

journey  -----  201 

52,  Delivery  to  a  carrier,  &c.                   -                 -  202 

65.  Delivery  to  wharfingers,  &lc.    -                 -                 -  207 

70.  Stoppage  in  transitu  between  principal  and  agent  208 

80.  After  a  bill  of  lading  made  and  indorsed                   -  211 

99.  Possession  by  the  vendee  of  other  evidences  of  title  217 

102.  Re-sale  by  the  vendee               .                _                -  218 

108.  Part-payment     -                 -                 -                 -  220 

109.  Payment  by  bill,  &c.  -  -  -  ib. 
111.  Consignment  by  debtor  to  creditor  -  -  ib. 
114.  Who  may  exercise  the  right     -                -  .              -  221 


CHAPTER   IX. 

WARRANTY. 

Sect.  I. — General  principles  relating  to  warrant])  of  chattelsy 

in  respect  to  quality . 

1 — 2.  Distinction  between  the  civil  and  the  common  law  223 

10.  Fair  price  does  not  imply  warranty             -                 -  225 

13.  Interior  of  an  article  sold  in  bales     -                  -  226 

15.  Sale  of  slave                 -                 -                 -                 -  ib, 

16.  False  assertion  of  value  or  income     -                -  227 

17.  Decided  cases  .  .  -  -  228 
23.  Exceptions  to  the  general  rule  -  -  230 
26.  Visible  defects,  and  sale  by  inspection        -                 -  ib. 

Sect.  II. —  Words  necessary  to  a  warranty. 

Sect.  III. — What  is  a  breach  of  warranty^ 

Sect.  IV. — Sale  hy  sample. 

Sect.  V. — Sale  of  provisions. 


CONTENTS.  XMI 

Sect.  VI. —  What  is  necessary  to  sustain  a  suit  or  defence  upon 
a  warranty,  or  to  rescind  a  sale. 

Sect.  VII. — Form  of  action  and  manner  of  ■pleading  in  suits 
upon  warranty. 

Sect.  VIII. — Evidence  in  case  of  ivarranty. 

Sect.  IX. — Dcwiages  in  case  of  warranty. 

Sect.  X. —  Warranty  of  title. 


CHAPTER  X. 

RESCINDING  OF  SALES. 

Sect.  I. — Rescinding  hy  mutual  agreement  of  parties. 

page 
1.  General  principles  and  decided  cases  -  -    262 

7.  Rescinding  in  connexion  with  the  insolvency  of  the 

vendee,  and  stoppage  in  transitu    -  -  263 

15.  Promise  of  the  vendor   to  restore   the  consideration, 

whether  a  rescinding  ...     266 

17.  Rescinding  in  part,  by  parol  -  -  267 

20.  Re-exchange — payment  or  delivery  necessary  -     268 

Sect.  II. — Rescinding  by  the  vendor. 

1.  Neglect  of  vendee  to  take  tlie  goods  -  -    268 

2.  Disaffirmance  for  fraud  or  insolvency  of  the  vendee         269 

12.  Time  of  rescinding    ....  271 

13.  Resumption  by  the  vendor  as  agent  of  the  vendee  ib. 
15.  Election  of  the  vendor  to  rescind  or  the  reverse        -  272 

21.  What  will  justify  non-delivery  of  goods  sold       -  273 

Sect.  III. — Rescinding  by  the  vendee. 
1.  Return  of  thing  sold  ;  for  what  causes,  at  what  time, 

&c.         -  -  -  .  .    273 

13    Rescinding   by  vendee,  after  a  breach  of  contract  to 

deliver  by  the  vendor  ...    276 


XIV  CONTENTS. 

PAGE 

15.  Breach  of  special  agreement  by  the  vendee  is  a  rescind- 
ing -  -  -  .  -  -    277 

13.  Mere  offer  to  return  -  -  -  276 

14.  Rescinding  must  be  for  the  whole  -  -    277 

Sect.  IV. — Efeci  of  the  rescinding  of  a  sale. 


CHAPTER  XI. 

WHAT  AVOIDS  A  SALE. 
Sect.  I. — Fraud — between  the  parties. 

1.  General  principles       .  -  -  -    282 

4.  Misrepresentation  by  a  vendee  as  to  his  circumstances, 

purchase  without  an  intention  of  paying,  &c.        -    283 

15.  Cheating,  what    -  -  -  -  287 

16.  Miscellaneous  examples  of  fraud  -  -    288 

Sect.  II. — Fraud  against  creditors,  S^c. 

1.  General   principles — Statute   of  Elizabeth — Twyne's 

case        -----    289 

5.  Secret  trust,  evidence  of  fraud.     Distinction  between 

transfers  of  real  and  personal  estate,  absolute  and 
conditional  sales  _  -  .  291 

10.  Conveyance  to  a  creditor  of  property  exceeding  his 

debt;  distinction  between  actual  and  constructive 

fraud,  &c.               -                 -                -  -    292 

11.  Conveyance  after  suit  commenced       -  -            293 

12.  Subsequent  creditors  -                 -                 -  -       ib. 

13.  What  property  excepted  from  the  statute  -               ib. 

14.  Decided  cases             -                -                -  -       ib. 
23.  Sale  void  as  to  creditors,  &c. ;  how  far  valid  -            296 

26.  Evidence,  what  admissible           -                 -  -       ib. 

27.  Fraudulent  transfer  by  a  member  of  a  corporation  ib. 

28.  Remedy,  what            .                -                 -  -    297 

29.  Conveyance  made  in  contemplation  of  bankruptcy  ib. 


CONTENTS.  XV 

Sect.  III. —  Which  of  two  parties  shall  suffer  by  the  fraud  oj 

a  third. 

Sect.  IV. — Sales  void  for  illegality ^  S^c. 

PAGE 

1.  Whether  the  imposing  of  a  penalty  renders  the  con- 
tract void  ....    303 
4.  Decided  cases      ....  306 
16.  Sales,  immoral,  against  public  policy,  &c. — miscella- 
neous examples       -                .                .                .     309 


CHAPTER  XII. 

REMEDIES  IN  CASE  OF  SALE,— FORMS  OF  ACTION, 
DEFENCES,  EVIDENCE,  DAMAGES,  &c. 

Sect.  I. — Necessity  of  a  demand  or  tender. 

Sect.  II. — Action  for  goods  sold  and  delivered. 

2.  Express  promise  and  agreed  price  unnecessary          -  314 

3.  Security  given,  which  proves  of  no  value            -  315 

4.  Goods  received  by  the  defendant — promise  implied  -  ib. 
7.  But  there  must  be  a  sale     ...  316 

15.  Goods  not  received  by  the  vendee               -                 -  318 

17.  Sale  incomplete — the  action  does  not  lie             -  319 
19.  Goods  not  deliverable  without  payment — no  action  till 

delivery                   -                 -                 -                 -  ib. 

22.  Special  contract — disaffirmed — an  action  lies     -  320 

33.  Rule  of  practice ;  inspection  of  goods       -                -  322 

Sect.  III. — Action  for  goods  bargained  and  sold. 

1.  Where  it  lies,  in  general              ...  322 

6.  Re-sale  by  the  vendor          ...  323 

9.  Contract  of  sale  or  return          -      '           -               '  -  ib. 

11.  Privity  of  contract  necessary               -                -  324 

Sect.  IV. — Action  for  money  had  and  received. 

1.  By  a  vendee,  to  recover  the  price  paid       -                -  324 


XVI  CONTENTS. 

PAGE 

2.  For   the  proceeds  of  property  wrongfully  taken   or 

withheld,  or  fraudulently  purchased       -  -     324 

Sect.  V. — Forms  of  declaring  in   actions  upon  the  contract  of 

sale. 

1.  Non-delivery  of  goods  sold  -  -  326 

2.  Warranty  of  title         -  -  -  -     327 

3.  Special  and  general  counts   -  -  -  ib. 

4.  Performance  of  condition  by  the  plaintiff-  -       ib. 

Sect.  VI. —  Variance  betivcen  averments  and  proofs. 

6.  In  relation  to  the  property  sold            -                 -  331 

13.  The  price   -                 -                -                -                -  ib. 

16.  Performance  of  condition    -                 -                 -  332 

17.  Alternative  contract   -                -                -                 -  ib. 

Sect.  VII. — Defences. 
Sect.  VIII. — Amount  of  Damages. 


CHAPTER  XIII. 

SALE  OR  ASSIGNMENT  OF  CHOSES  IN  ACTION. 

Sect.  I. —  What  may  he  assigned. 

1.  General  principles.     What  assignable        -  -    338 

4.  Policy  of  insurance              .                 -                 -  340 

5.  Shares  in  corporations                 -                 -  -       ib. 
9.  Judgment  and  execution      ...  341 

16.  Miscellaneous  cases    -  -  -  -     343 

Sect.   II. — Form  of  assignment ;  whether  in  writing,  hy  deliv- 
ery, Sfc. 

Sect.  III. — Effect  of  an  assignment  upon  the  rights  of  the  par- 
ties— notice,  off-set,  ^c. 

1.  Notice  to  the  debtor,  form  and  effect  of    -  -     348 

9.  Debtor's  right  of  set-off      -  -  -  349 

Sect.  IV. — Remedies  in  case  of  assignment — suits  at  Law  and 
in  Equity — defences,  S^^c. 


CONTENTS. 


CHAPTER  XIV. 

STATUTE  OF  FRAUDS. 

Sect.  I. — Objects  and  mode  of  construction  of  the  statute. 
Sect.  II. —  To  what  contracts  the  statute  is  applicable. 
Sect.  III. — Requisites  of  a  writing  under  the  statute. 

PAGE 

1.  Consideration  .  -  -  -     358 

2.  Defendant  only  need  sign  the  writing  -  ib. 

4.  Names  and  price  must  be  mentioned          -  -       ib. 

5.  Several  memorandums  may  be  coupled  together  359 
14.  "What  is  a  signing  -  -  -  -  361 
19.  Contracts  made  by  agents,  brokers,  &c.  -  ib. 
37.  An  admission  must  be  taken  all  together    -  -    364 


TABLE  OF  CASES  CITED. 


A. 

Page 

Abbotts  V.  Barry  325 

Acebal  v.  Levy    136.  145.  323 
Adams  v.  Lindsell  14 

V.  Wheeler  292 

V.  Paige  302 

V.  Steam  Boat  Co.      314 


V.  Robinson 

Addis  V.  Baker 
Adamson  v.  Jarvis 
Aickle's  case 
Akerman  v.  Humphrey 
Alvord  V.  Baker 
Alewyn  v.  Pryor 
Alford  V.  Eglisfield 
Allen  V.  Smith 
V.  Edarerton 


112. 


V.  Ogden 

V.  Humniond 

V.  Holden 

V.  Bennet 

Alexander  y.  Gardner  88. 

Allan  V.  Gripper 
Alderson.  V.  Temple 
Allison  V.  Noble 
Alvord  V.  Smith 
Amherst,  Sic.  v.  Cowls 
Anderson  v.  Scot 


347 

128 

259,  260 

286 

218 

8 

22 

59 

86 

269. 

273 

177 

310 

340 

359 

136. 

322 

204 

301 

334 

341 

343 

78 


Anderson  v.  Bullock 

V.  Van  Alen 

Andrews  v.  Dietrich 

v.  Kneeland 

V.  Whitehead 

Arden  v.  Patterson 
Atkin  V.  Barwick 
Atkinson  v.  Barnes 

. v.  Bell 

Austen  v.  Craven 
Ayer  v.  Bartlett 

B. 

Badger  v.  Phinney 
Badlam  v.  Tucker 

Baines  v.  Jevoris 
Bailey  v.  Johnson 

V.  Ogden 

V.  Goldsmith 

V.  Adams 

V.  Nichols 


Baker  v.  Lloyd 

V.  Page 

Baldwin  v.  Farnsworth 
Baldey  v.  Parker         136. 
Baring  v.  Carrie 
Barrett  v.  Goddard 
v.  Pritchard 


V.  Hodgson        102.  106  1  Barton  v.  Hanson 


Pago 

346 

348 

125 

241,  242 

329 

352 

262.  265 

92 

322.  324 

32.  194 

20 


50 

127. 

129 

140 

8 

94 
152 
184 
249 
114 
311 
131 
138 

62 
184 
178 

70 


183, 
225. 


20. 


TABLE    OF    CASES    CITED. 


Barney  v.  Brown 
Bartlett  v.  Williams 
Barnes  v.  Billington 

V.  Blackiston 

Bertram  v.  Farebrother 

203.  263. 
Barney  v.  Dewey 
Basset  v.  Collis 
Bates  V.  Conkling 
Batturs  V.  Sellers 
Bayley  v.  Ballard 
Baylies  v.  Fettyplace 
Bayntum  v.  Cattle 
Beaumont  v.  Crane 
Beattie  v.  Robin 
Beecker  v.  Vrooman 
Beed  v.  Blandford 
Bell  V.  Curtis 
Bement  v.  Smith 
Bennett  v.  Piatt 

V.  M'Fall 

Benton  v.  Thornhill 
Best  V.  Osborn 
Betts  V.  Gibbins 
Bexwell  v.  Christie    170. 

Bickham  v.  Irwin 
Biddle  V.  Levy 
Biddis  V.  James 
Bigelow  V.  Willson 
— —  V.  Jones 
Biggs  V.  Lawrence 
Bird  V.  Boulter 
Bishop  V.  Holcomb 

■  V.  Williamson 

Black  V.  Everett 
Blacks  V.  Catlett 
Blackford  v.  Preston 
Blasdale  v.  Babcock    257. 
Blenkinsop  v.  Clayton 
Bliss  V.  Negus 
Blood  V.  Palmer 
Bloss  V.  Kittridge 
Blount  V.  Davis 
Bluett  V.  Osborn 
Blydenburg  v.  Welsh  2 L 
225 


Pa§e 

90 
112 
299 
315 
189. 
279 
327 
240 

76 
362 
299 
318 
308 

91 
109 
334 
278 
339 
319 
278 
353 
110 
240 
191 
172, 
173 
315 

48 
309 

12 
325 
306 
364 
349 
311 
340 
283 
310 
258 
143 
289 

17 
256 
343 
231 
131. 
336 


Boardman  v.  Sill 
Bolden  v.  Brogden 
Bolin  v.  Huffnagle 


194. 


Bonsey  v.  Amee 
Boorman  v.  Jenkins  246 

Borrekins  v.  Bevan 
Boulter  v.  Arnott 
Bowdell  V.  Parsons 
Boyd  v.  Siffkin 

v.  Brown 

Bradford  v.  Manly 

v.  Tappqn 

Brainard  v.  Burton 

Brandt  v.  Bowlby 

Bramley  v.  Alt 

Branson  v.  Gales 

Bragg  V.  Cole 

Breen  v.  Ingram 

Brewer  v.  Smith 

Bridge  v.  Wain 

Briggs  V.  Dorr 

Brinley  v.  Spring 

Brindley  v.  Tibbets 

Bristow  v.  Waddington 

Bristol  V.  Wilsmore 

Broennenburgh  v.  Haycock  240 


Pace 

185 

239 

202. 

212 

126 

251. 

254 

236 

319 

314 

134 

295,  296 

232.  237. 

245 

3 

180 

104 

173 

319 

320 

339 

120 

237 

344 

23 

278 

328 

148 


Brooke  v.  White 
Brooks  V.  Powers 

V.  Carneal 

Brown  v.  Maine  Bank 


V.  Rees 

V.  Bellows 


Browning  v.  Stallard 

v.  Magill 

Bruce  v.  Pearson 


Buchanan  v.  Parnshaw 
Buck  v.  Hatfield 
Bucknam  v.  Nash 
Buckley  v.  Furniss 

195.  197 
Buffington  v.  Curtis 
Bunney  v.  Poyntz 


153 

110 

282 

340. 

342 

340 

356 

7 

24 

10 

253 

213 

76.  356 

189,  190. 

200.  202 

87 

184 


TABLE    OF    CASUS    CITED. 


Page 

Burrough  v.  Skinner  164 

Burlingame  v.  Bell  297 
Buskv.  Spence            132.134 

V.  Davis  196 

Butterfield  v.  Burroughs  239 

Butler  V.  Haight  321 

Bywater  v.  Richardson  40 

C. 

Cadogan  v.  Kennet     lOS.  291 

Campbell  v.  Sewell  154 

V.  Fleming  252 

's  case  286 

Canaan  v.  Greenwoods  11 

Canfield  v.  Monger  349 

Canby  v.  Ridgway  351 

Carruthers  v.  Payne  6 

Carter  v.  Jarvis  ib. 

V.  Toussaint  136 

Carlisle  v.  Burley  11  ] 

Carleton  v,  Sumner  99 

V.  Whitcher  311 

Carsaa  v.  Rambert  305 
Carroll  v.  Boston    M.  I. 

Co.  340 

Cash  V.  Giles  275 
Case  V.  Boughton        149.  235 

Clugas  V.  Penaluna  306 

Champion  V.  Plummer  358 

Chaplin  v.  Rogers      136.  138. 
355 

Chapman  V.  Lathrop  119 

V.  Searle  263 

Chism  V.  Woods  25S 

Churchill  v.  Wilkins  333 

Clark  V.  Mauran  220 

V,  Imlay  316 

V.  Smith  320 

V.  Manstone  333 

■ V.  Rogers  344 

Clarke  v.  Hutchins  134 

V.  Noel  146 

Clayton  v.  Fawcett  346 

Clason  V.  Bailey  362 
Clarkson  v.  Carter       146,  147 

Clerason  v.  Davidson  177 


Cleveland  v.  Clap  340 

Clinan  v.  Cooke  864 

Clinton  V.  Fly  344 

Coates  V.  Muse  343 

V.  Railton  211 

Cobb  V.  Williams  339 

V.  Thompson  343 

Coburn  v.  Pickering  241 

Cocke  V.  Hardin  282 

Coffman  v.  Allin  ib. 

Coleman  v.  Gibson  274 

Colman  v.  Price  316 

Comegys  v.  Vasse  339 

Com.  V.  Brenneman  255 

V.  Warren  287 

V.  Fuqua  342 

Comply  V.  Aiken  350 

Comyns  v.  Boyer  303 

Condon  v.  Walker  307 

Conolly  T.   Parsons  172,  173 

Conyers  v.  Ennis  189 

Cook  V.  Mosely  232.  253 

Cooke  V.  Ludlow  317 

Coolidge  V.  Inglee  305 

Coombs  V.  Emery  309 
Cooper  V.  Smith  145.360,361 

V.  Elston  356 

Coppin  V.  Walker  167 

Corlies  v.  Gardner  320 

Corser  v.  Cray  347.  349 

Cousens  v.  Padden  230.  336 

Cowan  V.  Adams  179 

Cox  V.  Todd  133 

Coxe  V.  Harden    '  188.  206 

Cramer  v.  Bradshaw  233 

Crane  v.  Roberts  21 

Craven  v.  Ryder  218 

Crawshay  v.  Eades  205 
Crispin  v.  Williamson         322 

Crocker  v.  Whitney  12.  340 

Cross  v.  Eglin  38 

v.  Peters  ,      270 

Crowder  v.  Austin  170 

Cruso  V.  Crisp  159 

Cuff  V.  Penn  267 

Cuming  v.  Brown  214 
Cun  ningham  v.  Herndon    346 


XKIl 


TABLE    OF    CASES    CITED. 


Cunningham  v.  Speer 
Curtis  V.  Created 

V.  Cisna 

Cutler  V.  Pope 

Cutts  V.  Perkins  339.  344 


Pa<;e 

229 
165 
351 
183 
347 


D. 

Daggett  V.  Adams 
Dame  v.  Baldwin 
Damon  v.  Osborn 
Dana  v.  Mason 
Danforth  v.  Dewey 
Daubigny  v.  Duval 
Day  V.  Whitney 
Davenport  v.  Wheeler 


68 
24 
95,96 
152 
279 
177 
346 
149 


Davis  V.  Coburn 

•: V.  Maynard 

■ V.  Moore 

V.  Hill 


V.  Woodbridge  348,  349 

343,  344 
67 
96 

121 
160.  358 
231 
238 
291 
351 
113 

344.  353 


V.  Rowell 

V.  Meeker 

V.  Sandford 

Dawes  v.  Cope 

V.  Boylston 

Dawson  v.  Wood 
V.  Coles 


Dean  v.  Mason  226.  229.  324 
De  Begnis  v.  Armistead  304 
De  Fonclear  v.  Shottenkirk  3 
De  Freeze  v.  Trumper      224. 


Dell  V.  Taylor 

De  Tastet  v.  Carrol 

Denn  v   Diamond 

Dennett  v.  Short 

De  Ridder  v.  M'Knight 

Dickenson  v.  Naul 

V.  Fallett 


258 

322 

301 

3 

41 

78 

66 

240 

37 

330 


Disborough  v.  Neilson 
Ditchburn  v.  Spracklin 
Dix  V.  Cobb  340.  353 

Dixon  V.  Yates  3.  84.  181.218 

V.  Baldwin  189.  201 

V.  Deveridge  336 

Dobell  V.  Hutchinson  169.  359 
Dole  V.  Stimpson        115,  121 


Donaldson  v.  M'Roy 
Dox  V.  Dey 
Drayton  v.  Thompson 
Duncanson  v.  M'CIure 
Dunning  v.  Sayvvard 
Dunn  V.  Snell  340. 

Dunlop  V.  Waugh 
Durell  V.  Haley  283. 

Durkee  v.  Leland 
Duton  V.  Rodes 
Dutton  V.  Solomonson 

152. 
Dyer  v.  Pearson 
Dykes  v.  Blake 

E. 

Earl,  &,c.  V,  Wilsmore 
Easton  v.  Worthington 
Edwards  v.  Harben     108, 

V.  Hodding 

Egerton  v.  Mathews 
Eichelbergerv.  M'Cauley 

Eland  v.  Karr 
Eliason  v.  Henshaw 
Elliott  V.  Pybus  139. 

V.  Wilkinson 

Ellis  V.  Hunt       188.  194. 
V.  Hamlen 


Elmore  v.  Stone 

V.  Kingscote 

Eels  V.  Finch 
Elton  V.  Brogden 
Emerson  v.  Fisk 
V.  Brigham 


92 
145 


179 
250, 

V.  Providence,  &c. 

Ensign  v.  Kellogg       343 
Estwick  V.  Cailland 
Everett  v.  Tindall 

V.  Gray 

Evertson  v.  Miles 
Ewing  V.  French  16 


Fair  v.  ivi'Iver 
Fairbank  v.  Phelps 


Pape 

171 
314 
353 

307 
353 
342 
236 
285 

17 
310 
102. 
314 

63 
168 


284 
24 

.291 
164 
358 

356, 
357 
150 
14 
322 
315 

^07 
271 
136 

,  358 
350 
240 
339 
255 
316 
352 
294 
122 
334 
2.55 
313 


150 

102 


TABLE    OF    CASES    CITED. 


XXUl 


Fairbanks  v.  Blackington  296 

Fales  V.  Mayberry      ^  352 

Farebrolher  v.  Simmons  364 

Farmer  v.  Davies  60 

Feise  v.  Wray              182.  210 

Felton  V.  Dickinson  329 

Fenn  v.  Harrison  56 

Ferguson  v.  Carrin^ton  152 


Fisher  v.  Samuda 
Fitch  V.  Beach 
Flagg  V.  Dryden 
Fletcher  v.  Willard 
v., Howard 


252.  334 
118 


132 
110 
126 

227 
236 
13 
344 
304 
203 
345 
193 

Fox  V.  Hanbury  71 

Fragano  v.  Long  22.  102, 103 
Franklin  v.  Long      227.  251. 

253 
Frost  V.  Hill  68 
V.  Clarkson                  311 


Fleming  v.  Slocum 
Flight  V.  Booth 
Fonville  v.  Casey 
Ford  V.  Stuart 
Forster  v.  Taylor 
Foster  v.  Frampton 

V.  Lowell 

Fowler  v.  Rymer 


201. 


Fry  V.  Hill 

Fuller  V.  Abrahams 

G. 


146 
174 


Gaby  v.  Driver  165 

Gainsford  v.  Carroll  "     337 

Galbraith  v.  Wythe  225 

Gallagher  v.  Waring  241 
Gallatin  v.  Cunningham     282 

Gallop  V.  Newman  34 

Garbutt  V.  Watson  356 

Gardiner  v.  Gray  243 

Gardner  v.  Howland  84.  130 

V.  Adams  339 

Garland  v.  Raheson  340 

Gatewood  v.  Lyle  352 

Geraldes  v.  Donison  40 

Germaine  v.  Burton  241 


Gerrish  v 
Gibson  v. 
Gilbert  v. 
Gilchreest  v 


Sweetser 
Boutts 
Hudson 
Pollock 


Giles  V.  Edwards 
Gilmore  v.  Wilbur 
Girard  v.  Taggart 

Gladstone  v.  Nealc 
Gleason  v.  Drew 
Glover  v.  Austin 
V.  Hunnewell 


Pa^e 

345 

298 

271 

3U 

276 

325 

52. 167. 

337 

331 

23.  32 

12.  30 

31 


181. 


272 
274 
319 
189 
251 
283 
318 
292 
340 
331 
340 
70 
342 
241 
40 
334 
26 
362,  363 
340 
164 
82 
131.  268 
181 
Greenwood  v.  Curtis  304.  314 
Gregory  v.  M'Dowell  337 

Griffin  v.  Langfield  47 

Grinaldi  v.  White  244 

Goom  V.  Aflalo  362 

Groning  v.  Mendham  89.  2.52 
Gross  V.  La  Page  306 

Guerreiro  v.  Peile  -      55 

Guier  v.  Page  150 

Gunnis  v.  Erhart  169 

Gwillim  V.  Daniell  38 


Gomery  v.  Bond 
Gorapertz  v.  Denton 
Goodall  V,  Skelton 
Goodhart  v.  Ijowe 
Goodhue  v.  Butman 
Goodloe  V.  M'Lanathan 
Goodrich  v.  Lafflin 
Gorham  v.  Herrick 
Gould  V.  Newman 
Goulding  V.  Skinner 
Gourdon  v.  Ins.  Co.,  &c. 
Gorthwaite  v.  Duckworth 
Governor  v.  Griffin 
Gower  v.  Von  Dadelszen 
Graham  v.  Jackson 
Grant  v.  Button 

v.  M'Lachlin 

V.  Fletcher 

V.  Brown 

Gutteridge 
Greaves  v.  Hepke 
V.  Ashlin 


Graves 
Gray  v. 


Green  v.  Haythorne 


TABLE    OF    CASES    CITED. 


Paso 


H. 


Hadwen  v.  Mendisabal       146 
Hagedorn  v.  Laing  323 

Hague  V.  Rolleston  71 

Hail  V.  Jackson  177.  208 

V.  Gardner  343 

Hammond  v.  Anderson       123 
Hamilton  v.  Russell  291 

Hankey  v.  Smith  323 

Hanson  v.  Meyer       115.  117. 
191.  195 

■ V.  Armitage        136 

V,  Roberdeau 

Haralson  v.  Dickens 
Hardacre  v.  Stewart 


163 


Harding  v.  Janes 
Hardy  v.  Metzgar 
Harman  v.  Fisher 
Harper  v.  Butler 
Harrington  v.  Rich 

V.  Fry 

Harris  v.  Earle 

V.  Smith 

V.  Lunell 

Harrison  v.  Sterry 

V.  Allen 

V.  Wilson 


90. 


141 
165 
310 
325 
112 

24 
302 
352 
347 

60 
345 

18 
288 
299 
324 
331 
331 
102 
301 
227 
291 

79 
297 
109 


Hart  V.  Tyler 

V.  Sattley 

Hartshorn  v.  Slodden 

Harvey  v.  Young 

Haselinton  v.  Gill 

Haskell  v.  Greely 

Hassells  v.  Simpson 

Hastie  v.  Arthur 

Hastings  v.  Lovering  238. 256 

V.  Baldwin  299 

Hawes  v.  Humble  22 

' V.  Forster  63 

V.  Watson  208.  218 

Hawkes  v.  Dunn  208 

Hawse  v.  Crowe  148 

Hayden  v.  Hayward  277 

Hayward  v.  Scougall  37 

V.  Leonard  318 

Hazard  v.  Haralin  268 


Page 

Headly  v.  Vanness  S39 

Heald  v.  Cooper  4J 

Heermance  v.  Vernoy  258 
Helps  V.  Winterbottom  155 
Hemenway  v.  Hemenway  326 
Hemming  v.  Perry  360 

Henderson  v.  Barnewall  362 
Heron  v.  Granger  153 

Herring  v.  Marvin  10 

Heyward  v.  Waring  177 

Heyman  v.  Neale  362 

Hibbert  v.  Shee  243,  244 

Hickling  V.  Hardey  153 

Hickman  v.  Cantrell  19 

Hicks  V.  Whitmore     150.  162 
Higgins  V.  Chessman         3,  4. 
131 


Hill  V.  Perrott 

v.  Gray 

v.  Davis 

v.  Hill 

Hinde  v.  Whitehouse  97. 

161. 

Hoadly  v.  Maclaine    145, 

Hodgson  v.  Davies      150. 

V.  Day  189. 

V.  Temple 


9 
224 
325 
337 
160. 
362 
268 
269 
220 
305 

Hogins  V.  Plympton  234.  236, 
237 

Holbird  v.  Anderson 

Hoi  brook  v.  Burt 

Holcombe  v.  Hewson 

Holderness  v.  Shackells 

Holman  v.  Johnson 

Hoist  v.  Pownal 

Holliday  v.  Mann 

HoUingsworth  v.  Napier 

Holden  v.  Dakin 

Hooper  v.  Smith 

Hopkins  v.  Appleby  274, 

V.  Lee 

Hore  v.  Milner 

Hoskins  v.  Duperoy 

Houlditch  v.  Desanges 


Howard  v.  Castle 
Howell  v.  Bulkley 
Hughes  v.  Robertaon 


293 
270 
230 
186 
309 
202 
214 
218 
237 
297 
275 
336 
323 
152 
185 
171 
344 
231 


TABLK    OF    CASEa    CITED. 


Page 

Hunn  V.  Bowne  218.  220 

Hunt  V.  Silk  276 

V.  Knickerbocker      308 

Hyatt  V.  Boyle  224.  228 


Icely  V.  Grew  173 

Idle  V.  Thornton  IJM.  273 

Inglis  V.  Asherwood  212 

Ingraham  v.  Wheeler  128 

Irving  V.  Motly  284 


142. 


Jackson  v.  Hills 

V.  Duchaire 

V.  Lowe 

V.  Covert 

Jacobs  V.  Latour 
James  v.  Griffin 

V.  Shove 

Jendwine  v.  Slade 
Jenkins  v.  Hogg 
Jennings  v.  Carter 
Jewett  v.  Warren 
Jones  v.  Witter 
Justices  V.  Armstrong 
Johnes  v.  Williams 
Johnson  v.  Hudson 
Jones  V.  Scriven 

V.  Hoar 

v.  Kennedy 

v.  Witter 

v.  Bovvden 

v.  Murray 

V.  Nanney  158,  159.  162, 

163 

V.  Baldwin  180 

Jordan  v.  James  189,  190.  201 
Joy  V.  Sears  127.  129 

Judd  v.  Dennison  258 

Judkins  v.  Earl  37 

Junkins  v.  Simpson   224.  279 


282 
288 
359 
357 
185 
265 
159 
238 
174 
112 
76.  78 
353 
352 
23 
305 
334 
325 
335 
344 
257 
225.  250 


K. 
Kellogg  V.  Krauser 


348 


Kemp  v.  M'Pherson 
Kendall  v.  Andrews 
Kenworthy  v.  Schofield 
Kent  V.  Haskinson      136 
Ketletas  v.  Fleet 
Keyes  v.  Stone 
Kinder  v.  Howarth 
Kimball  v.  Cunningham 
Kinlock  v.  Craig 
King  V.  Price 

V.  Paddock 

V.  Fowler 


Kingsley  v.  Wallis 
Kirk  V.  Nice 
Kittredge  v.  Sumner 
Klinitz  V.  Surry 
Knapp  V.  Harden 
Kymer  v.  Suwercropp 


Lacey  v.  Collins 
Laidlaw  v.  Organ 
Laing  v.  Fidgeon 
Lamb  v.  Pegg 
V.  Durant 


69. 

Lane  v.  Borland 
Lanfear  v.  Sumner  75,  76 
Langton  v.  Hughes 
La  Neuville  v.  Nourse 
Lano  V.  Neale 
Lansing  v.  Turner 
Lanier  v.  Harwell 
Larabee  v.  Ovit 
Law  V.  Hodson 
Lea  V.  Yard 
Leas  V.  James 
Lecky  v.  M'Dermott 
Lee  V.  Risdon 

V.  Munn 

Leeds  v.  Wright  194. 

Leery  v.  Goodson 
Legg  V.  Willard 
Leigh  V.  Banner 

V,  Patterson 

Lent  V.  f  adelford 
Levi  V.  Levi 


349 

53 

364 

141 

274 

327 

58 

253 

210 

280 

335 

349 

274 

40 

35 

97 

156 

189 


339 
283 
230 
151 
126 
303 
126 
307 
230 

37 

8 

315 

267 

304 

52 
320 

24 
153 
165 
199 
330 
185 
4 
337 
333 
174 


XXVI 


TABLE    OF    CASES    CITED. 


Page 

Lewis  V.  Cosgrave     253.  282. 

334 
Lickbarrow  v.  Mason  213.  218 
Lighlfoot  V.  Tenant  307 

Linton  v.  Bartlett  300 

Litt  V.  Cowley  190 

Livermore  v.  Bagley  299 

Lloyd  V.  Holly  185 

Locke  V.  Winning  299.  301 
Loeschman  v.  Williams  98 
Longchamp  v.  Kenny  326 

Loomis  V.  Green  11 

Lord  V.  Kenny  280 

Lorimer  v.  Smith  244 

Lovat  V.  Parsons  264 

Lucas  V.  Dorrien  218 

Ludlow  V.  Heard  87.  106 

Lunt  V.  Whitaker  111 

Lupin  V.  Marie  177.  182 

Lyle  V.  Lyle  337 

Lyon  V.  Summers  340 

Lyons  v.  Barnes  317 

Lysney  v.  Selby  234 

M. 

Maberly  v.  Sheppard  142 

Mackinley  v.  M'Gregor  45. 

269.  286 

Maclean  v.  Dunn       269.  363, 

364 

Macomber  v.  Parker  85 

Mactier  v.  Frith  14 

Maginac  v.  Thompson  293 

Mair  v.  Glennie  111 

Maltby  v.  Christie  163 

Manby  v.  Scott  45 

Mandeville  v.  Welch  347 

Manton  v.  Moore  35 
Marsh  v.  Lawrence    295.  297 

. V.  Wickham  16 

V.  Pier  55 

Marston  v.  Baldwin  99 

Martin  v.  Mathiott  18 

. V.  Hawks  342 

Marshall  v.  Craig  342 

V.  Poole               -  153 

Margetson  v.  Wright  239, 240 


Page 

Marcy  v.  Clark  289 

Martindale  v.  Booth  110 

Martrick  v.  Linfield  111 

Mason  v.  Lickbarrow  97 

Massen  v.  Price  154 

Matthews  v.  Bliss  72 

V.  Hawks  342 

Mavor  v.  Payne  7 

Mayor  v.  Nias  150 

M'Carty  v.  Blevins  13 

V.  Vickery  130 

M'Cavock  V.  Ward  235 

M'Cullum  V.  Cox  353 

M'Donald  v.  Hewett  27 

M'Farland  v.  Newman  234 

M'Mechen  v.  Grundy  299, 

300 
M'Menomy  v.  Roosevelt     300 

V.  Ferrers  ib. 

Meany  v.  Head  177 

Medina  v.  Stoughton  258 

Mehaffy  v.  Share  351 

Meldrum  v.  Snow  17 

Mellish  V.  Motteaux  235 
Merrill  v.  Hunnewell  121, 122 

V.  Merrill  350 

Merritt  v.  Clason  362 

Meredith  v.  Todd  310 

Mesnard  v.  Aldridge  253 

Meyer  v.  Sharpe  4 

Meyhan  v.  Mills  348 

Milford  V.  Bellingham  4 

Miller  v.  Miller  325 

V.  Smith  334 

■  V.  Shawe  154 

Milner  v.  Tucker  274 

Mills  V.  Oddy  149 

V.  Ball       202,  203.  207. 

264 

Miner  v.  Bradley  94 
Mires  V.  Solebay              4.  262 

Mitchell  V.  Hayne  164 

Mixer  v.  Howarth  357 
Moncrieffv.  Goldsborough  171 

Monk  V.  Whittenbury  64 

Morgan  v.  Fencher  260 

Morley  v.  Hay  195 


TABLE    OF    CASES    CITED. 


XXVll 


Morberger  v.  Hackenberg 
Morison  v.  Gray 
Morris  v.  Martin 
Morton  v.  Lamb 
Moses  V.  Stevens 
Mosely  v.  Boush 
Mount  V.  Williams 
Mowry  v.  Todd  340.  344. 
Mucklow  V.  Mangles 
Mumford  v.  M'Pherson 
Mussen  v.  Price 


Pa^e 

102 
214 

45 
329 

49 
352 
J  80 
351 

10 
236 
154 


N. 


190. 


Naylor  v.  Dennie 
Neate  v.  Ball 
Nelson  V.  Aldridge 
Nesmith  v.  Washington, 

&c. 
New     England,    &.c.    v. 

Chandler  292. 

Newhall  V.  Vargas     190. 

Nevvson  v.  Thornton    87. 
NichoUe  v.  Plume 
Nichols  V.  Hart 
Nicholls  V.  Le  Feuvre 
Nickson  v.  Jepson 
Nixon  V.  Jenkins 
Noble  V.  Adams  191.  193 
Norris  v.  Douglass 

■  V,  Williams 

Norton  v.  Young       321. 

V.  Squire 

Northey  v.  Field         189, 
Norwood  V.  Norwood 
Nunn  V.  Wilsmore 

O. 


195 
301 
163 

341 

295 
192. 
220 
209 
140 
198 
200 
155 
298 
284 
340 
179 
150. 
271 
15 
207 
328 
296 


Osey  V.  Gardner  213 

Outwater  v.  Dodge  119 

Owen  V.  Gooch  59 

Owenson  v.  Morse  196.  315 

Owings  V.  Hull  308 
Oxendale  v.  Wetherell     7.  95 

Oxenham  v.  Esdaile  177 


183 

156 

241.  276 

294 

340 

225.  247 

280 

25 

76.  80 

Parks  V.  Hall  94.96.  177.  188 
Pasley  v.  Freeman      227 
Patten  v.  Smith  3 

V.  Thompson 

V.  Clark 

Patterson  v.  Wilkinson 


Palmer  v.  Hand 
Parker  v.  Mitchell 

V.  Palmer 

V.  Pattee 

V.  Grout 

Parkinson  v.  Lee 
Parmeter  v.  Burrell 
Parsons  v.  Webb 
V.  Dickinson 


Ogden  V.  Jackson  299 

Okell  V.  Smith  271.  276 

Oneida,  &c.  v.  Lawrence  225. 
232.  241.  246 
Onslow  V.  Eames  240 

Oppenhem  v,  Russell  194. 206 


Pauli  V.  Simes 
Payne  v.  Shadbolt 

V.  Cutler 

V.  Cave 

V.  Whale 

V.  Rodden 

Pearce  v.  Rogers 
Pearson  v.  Talbot 
Pease  v.  Gibson 
Peckham  v.  Holman 
Pellecat  v.  Angell 
Peltier  v.  Collins 
Penniman  v.  Hartshorn 


Penny  v.  Porter 
People  V.  Haynes 


Percival  v.  Blake 
Perkins  v.  Thompson 

V.  Parker 

Peters  v.  Ballistier 
Peto  v.  Hague 


287 
271 
211 
302 
342 
4 

97 
334 
278 
254 
257 

54 
342 
339 
250 
306 
64.  256 

27. 
358 
333 
189. 
191 
275 

68 
344 
326 

57 


159 


36 


103. 
190 


TABLIi    OF    CASES    CITED. 


Peto  V.  Blades 
Petties  V.  Soam 
Peyton  v.  Hallett 
Phelps  V.  Willard 
Phillimore  v.  Barry 
Phillips  V.  Hunnewell 

V.  Bistolli 

PhcEtiix  V.  Day 
Pickstock  V.  l.yster 
Picket  V.  Morris 
Pickering  v.  Busk 

V.  Dovvson 

V.  Appleby 

Pleasants  v.  Pendleton 
Plymouth   Bank    v.    B. 

Norfolk 
Portland  Bank  v.  Stacey 


Porter  v.  Millet 
Powell  V.  Horton 

V.   Edwards 

V.  Rees 

Price  V.  Lea 

' V.  Nixon 

-^ — -  V.  Barr 
Primer  v.  M'Connell 
Pritchett  v.  Jones 
Proctor  V.  Jones     78 
Puck  ford  V.  Maxwell 
Purrington  v.  Loring 
Putney  v.  Day 
Putnam  v.  Dutch 


Page 

260 

56 
347 
122 

93 
3.  91. 
355 
136,  137 
300 
293 
350 

62 

235 

357 

81,  82 

of 

90 
126. 
128 
351 
233 
169 
325 
140 
154 
239 
309 

28 
355 
315 

68 

356 

126.  128 


41. 


84, 


a. 

duiner  v.  Marblehead,  &c. 

341.  344 
Quincy  v.  Tilton  9 


R. 

Ramsey  v.  Johnson 
Rawson  v.  Johnson 
Read  v.  Hutchinson 

V.  Bertrand 

Reader  v,  Knatchbull 


Reed  v.  Upton 

V.  Jewett 

Rees  V.  Manners 
Rew  V.  Barber 
Rex  V.  Taylor 

V.  Christie 

V.  Marsh 

•  V.  Lara 


Paio 

101 

292 

317 

255.  259 

158 

163 
171 

287 

Reynolds  v.  Wilkins  294 

Rhoades  v.  Selin  282 

Rice  V.  Shute  69 

V.  Austin  76.  79 

Rich  V.  Coe  60 

Richards  v.  Smith  68 

V.  Porter  360 

V.  Carl  327 

Richardson  v,  Goss     199.  266 

Ricker  v.  Cross       75,  76.  80. 

126.  130 

Riddle  v.  Varnum      122,  123. 

213 
Robbins  v.  Otis  332 

V.  Bacon  347 

Roberts  v.  Beatty  27.  94 

V.  Morgan  234 

Robinson  V.  M'Donnell       111 

V.  Musgrove  168 

Roby  V.  West  308 

Roe  V.  Martin  94 

Roffey  V.  Smith  336 

Rogers  v.  Van  Hoesen  132 
Rolide  V.  Thwaites  141.  323 
Roland  v.  Gundy  25 

Rondeau  v.  Wyatt  356 

Root  V.  French  283.  303 

Roots  v.  Dormer  159 

Rose  V.  Beatie  246 

Roswell  V.  Vaughan  250 

Rowe  V.  Pickford  191.  198 
Rowley  v.  Bigelow  89.  189. 
192.  251.  283 
Rucker  v.  Cammeyer  364 


352 

Rugg  V.  Minett                    116 

328 

Rusby  V.  Scarlett                  54 

316 

Russell  V,  Nicoll     27.  34.  96. 

ib. 

358 

269 

V.  Clark                      282 

TABLE    OF    CASES    CITED. 


XXIX 


Rutter  V.  Blake 


S. 


Page 

271 


Salisbury  V.  Stainer  226 

Salomons  v.  Nissen  215 

Salte  V.  Field  266 

Samuel  v.  Darch  330 

Sampson  v,  Fletcher  342 

San  Jose,  &.c.  1S8 

Sands  v.  Taylor  224,  225.  241. 

247.  272 
Sargent  v.  Franklin,  &.c.  341 
Saunderson  v.  Jackson  359 
Saville  v.  Robertson  70 

Sawyer  v.  Shaw  284 

Schneider  v.  Heath  224 

V.  Norris  359.  361 

Scojt  v.  Pettit  188.  199 

V.  Jones  350 

Schuyler  v.  Russ  230.  256 
Searle  v.  Reeves  81 

Seaver  V.  Dingley      251.256. 

269,  270 

V.  Bradley  345 

Seixas  v.  Wood  224.  237 

Selby  V.  Selby  361 

Sere  v.  Pilot  352 

Sewall  V.  Fitch  364 

Seymour  v.  Pichlau  61 

Shaw  V.  Nudd  30 

Shearer  v.  Jewett  35 

Sheldon  v.  Cox  318 

Shelton  v.  Levins  169 

Shepard  v.  Palmer  316 

Sheperd  v.  Hampton  336 

Shepley  v.  Davis  115 

Shiliitoe  v.  Claridge  240 

Shipton  V.  Casson  7 

Shipham  v.  Saunders  333 

Shumway  v.  Rutter       75.  85. 

106.  108 
Sifflien  V.  Wray  209 

Sill  V.  Rood  333 

Silver  V.  Hesseltine  331 

Simmons  v.  Swift  117 

Simon  v.  Lloyd  147 


Simon  v.  Motives 
Simond  v.  Hibbert 
Sims  v.  Klein 
Singleton  v.  Butler 
Sirlott  V.  Tandy 
Skinner  v.  Somes 
Slark  V.  Highgate,  &c. 


Page 

160 
181 

227 
300 
343 
351 

169 

Sloan  V.  Sommers  340 

Slubey  v.  Heyward  184.  214 
Small  V.  Quincy  36 

V.  Dudley  297 

Smith  V.  Blandy  39 

V.  Surman  360 

V.  Gray  353 

V.  Dennie  98.  101 

V.  Clark  173 

V.  Goss  195.  207 

V.Bowles  221 

V.  Field      262.  266.  272 

V.  Payne  299 

Snee  v.  Prescot  188.  202 
Snell  V.  Moses  226.  255 
Snodgrassv.  Broadwell  31 4.327 
Soames  v.  Spencer  70 
Soulhworth  v.  Sebring  343 
Somers  v.  Barrett  275 
Sparkes  v.  Marshall  105 
Spaulding  v.  Austin  90 
Spears  v.  Hartly  182 
Speiglemmyer  v.  Crawford  227 
Splidt  v.  Health  273 
Spooner  v.  Baxter  133 
Spring  V.  Coffin  280 
V.    South  Carolina, 

S:c.  340 

Spurrier  v.  Elderton  165 

Squier  v.  Hunt  326.  333 

Stanton  v.  Eager  89.  189.  198. 
217 
Stapp  v.  Anderson  315 

State  v.  Wilson  287 

v.  Vaughan  ,      268 

v.  Delyon  ib. 

Stearns  v.  Foote  330 

Stedman  v.  Gooch  153.  315 
Steel  v.  Brown  114.  291 

Stephenson  v.  Hart  286 


TABLE    OF    CASKS    CITED. 


Stevens  v.  Whitmore  1 14 

V.  Stevens  349 

Steward  v.  Loml)e  114 

Stiles  V.  Campbell  326 

Stockton  V.  Hall  349 

Stockbridge  v.  W.  Stock- 
bridge  4 
Stoddert  v.  Vestry  336 
Stogdell  V.  Fugate  339 
Stokes  V.  La  Riviere  204.  211 
Stone  V.  Hodges                     31 

V.  Case  132 

Storr  V.  Scott  59 

Stoveld  V.  Hughes  219 

Stovard  v.  Dunkin  81.  93 

Strutt  v.  Smith  155 

Street  v.  Blay  274 

Studdy  v.  Saunders  36 

Sturges  v.  Bush  307 

Summerwill  v.  Elder  212 

Sumner  v.  Hamlet  122.  ISO 
Swancott  v.  Westgarth  156 
Sweet  V.  Pym  178 

v.  Colgate  224.  238 

Swett  V,  Colgate  258 

Symonds  v.  Carr  239 


Talver  v.  West  97 

Tansley  v.  Turner  123 

Tariing  v.  Baxter  5 

Tarleton  v.  Allhusen  146 

Taunton  v.  Caswell  20 

Taylor  v.  Hare  278 

Tempest  v.  Fitzgerald       136. 

140 
Terry  v.  Olcott  308 

Thayer  v.  Havener  347 

V.  Hock  358 

The  Frances  192 

Monte  Allegre  248 

Thompson  v.  (iray  77 

V.  Morris  322 

V.  Maceroni  137 

V.  Trail  190.  192 

V.  Ashion  255.  257 


Thornton  v.  Simpson 

v.  Hargreaves 

v.  Meux 

v.  Kempster        358. 

v.  Wynn  251. 

v.  Jones 

Thurston  v.  Blanchard 
Tibbets  V.  Towle 
Timrod  v.  Shoolbred 
Tisdale  v.  Harris         357. 
Titcomb  V.  Seaver 

v.  Thomas  344, 

Tompkins  v.  Haile 
Topping  V.  Root 
Townly  v.  Crump 
Towne  v.  Collins 
Trask  v.  Bowers 
Trolt  V.  Warren 
Troup  v.  Wood 
Tucker  v.  Ruston 

v.  Humphrey     189. 

199.  211.  214. 

v.  Welsh 

Tuxworth  V.  Moore 
Twett  V.  Green 
Twining  v.  Morrice 
Twyne's  case  106. 

Tye  V.  Finmore 
Tyson  v.  Thomas 


Pnge 

135 

298 
363 
363 
299 
333 
285 
178 
225 
361 

52 
345 
136 

35 
191 

24 
109 
296 
175 

81 
198, 
217 
293 

81 
345 
175 
291 
243 
304 


U. 

U.  S.  V.  Buford  352 

V.  Tillotson  5 

V.  Barney  177 

V.  Hooe  291 

—  V.  Sturges  348 
Usher  V.  De  Wolfe     339,  340 

V. 

Vale  V.  Bayle  102 
Van  Bracklin  v.  Fonda       250 

Van  Cleef  v.  Fleet  285 

Van  Ostrand  v.  Reed  257 

Vanada  v.  Helm  232 

Vertue  v.  Jewell  220 


TABLE    OF    CASES    CITED. 


Vickery  v.  Taft 
Vincent  v.  Germand 
Vrooman  v.  Phelps 
Vyse  V.  Clark 

W. 


Page 

69 

92 

335 

147 


Wackerbarth  v.  Masson  133 
Waddington  v.  Oliver  7.  95 
Wadsworth  v.  Griswold  340 
Wakefield  v.  Martin  ib. 

Walker  v.  Dixon  7.  94 

V.  Advocate,  &.c.       158 

Wallace  v.  Breeds  196 

Walley  v.  Montgomery      204. 
2-20 
Walter  v.  Ross     87.  212.  213 
Warden  v.  Eden  342 

Waring  v.  Cox  213 

V.  Mason    242,  243.  246 

Warren  v.  Bartlett  182 

V.  Sproul  213 

Ward  V.  Shaw  3.  124 

V.  Harris  329 

Warwick  v.  Bruce  49 

Washburn  v.  Goodman  71 
Waterston  v.  Gatchell  20 

Waterhouse  v.  Skinner  314 
Watson  V.  Denton  240 

Way  V.  Wakefield  321 

Waymell  v.  Reed  307 

Webber  v.  Tivill  145 

Welch  V.  Mandeville  353 

Wendover  v.  Hogeboom  128 
West   Middlesex,   &,c.  v. 

Suwerkrop  356 

West  v.  Bolton  21 

V.  Anderson       234.  258 

W^estzinthius  215,  216 

Wetherell  v.  Jones  304 

Wheelwright  v.  De  Peyster  26 
Wheeler  v.  Collier  170 

v.  M'Farland  180 

V.  Russell  309 

V.  Wheeler  347 

White  V.  Wilks  115 


V\'hite  V.  Ganier 
Whitehead  v.  Tuckctt 
v,  Vaughn 


Page 

185 
63 

178 


Whitehouse  v.  Frost  197.  219 
Whitwell  v.  Vincent  100.  325 

V.  Wyer  365 

Whilcomb  v.  Williams        326 
Whitinff  V.  Farrand     102.  134 


Whitney  v.  Sutton 
Wilby  V.  Harris 
Wildman  v.  Glossop 
Wilkinson  v.  King 
Wilks  V.  Atkinson 
Wilkes  V.  Ferris 
Wilkins  v.  Stevens 
Willing  V.  Rowland 
Willis  V.  Twambly 


234 

317.  336 

331 


Williams 


64 

356 

84 

141 

52 

344.  349. 

353 

V.  Woodman        309 


V.  Spafford 

V.  Merle 

V.  Willington 


V.  Moore 


Wilmot  V.  Hurd 
Wilson  V.  Marsh 

V.  Wormal 

V.  Church 

Winks  V.  Hassall 


245 
23.25 
166 
183 
234 
236.  255 
293 
343 
180 

Winslow  V.  Loring  68 

Wiseman  v.  Vandeput  220 
Withers  v.  Reynolds  7.  39 
Wood  V.  Partridge      340.  344 

V.  Owings  300 

V.  Jones  217 

V.  Roach  220 

V.  Smith     233.  236,  237 

Woodbury  v.  Long  137 

Woodbridge  v.  Perkins      340. 
349 
Woods  V.  Russell  10 

Woodward  v.  Gates  113 

Wordall  v.  Smith  '      112 

Worselley  v.  De  Mattos  300 
Wright  V.  Lawes  191 

V.  Hart  226 

V.  Sharp  336 


xxxu 


TABLE    OF    CASES    CITED. 


Y. 

Yeats  V.  Pim 
Yohe  V.  Robertson 
Young  V.  Austin 


Page 

257 

327 

33 


Young  V.  White 
V.  Rex 


Zagury  v.  Furnell 


Pago 

38 

287 


120 


THE  LAW  OF  SALES 


OP 


PERSONAL  PROPERTY. 


CHAPTER  I. 


GENERAL  PRINCIPLES    RELATING    TO  SALES  OF 
PERSONAL  PROPERTY. 

Section  I. — what  constitutes  a  sale — payment,  de- 
livery, &/C. 

1.  General  "principles  and  dicta. 

2L  Sale  devests  the  vendor  of  all  title. 

23.  Re-sale  by  vendor,  with  vendee's  consent. 

25.  Sale  of  several  articles  together,  one  contract. 

26.  After  sale,  vendor  not  liable  for  loss,  Sfc. 
28.  Order  for  goods  passes  the  property. 

30.  Exchange. 

32.  Law  implies  a  sale,  when. 

34.  WJiether  a  contract  is  completed,  is  a  question  for  the  jury. 

35.  Manufacture  of  goods  to  order. 

36.  Exchange  of  securities,  no  sale. 

37.  Deviation  from  the  contract — no  action  lies. 
39.    Transfer  by  act  of  law. 

41.  Sale  of  a  thing  not  in  existence  at  the  time. 
1 


2  GENERAL    PRINCIPLES    OF    SALE,  &C.  [Chap.  I. 

Section  II. — payment  of  earnest. 

Section  III. — whether  a  contract  is  a  sale  or  a  bailment. 

1.   General  points  of  distinction,  and  decided  cases. 
8.   Contracts  of  sale  or  return. 

Section  IV. — conditional  sale. 

1.  General  principle. 

2.  Eff'ect  of  deliver^/  upon  the  condition. 

3.  Evidence. 

4.  Mortgage  or  conditional  sale,  whether. 

7.  Decided  cases,  construction  of  contracts. 
18.  Mortgage  of  chattels. 

Section  V. — effect  of    a  sale  by  one    not    owning    the 

property    sold MARKET    OVERT,  &C. 

1.  Sale  in  market  overt. 

8.  Sale  hy  a  bailee  or   other  person   having  possession   icithout 

title. 
11.  Sale  of  property  captured  or  ivrecked. 

Section  VI. — construction  of  sales. 

1.   Contracts  executed  and  executory. 
18.  Miscellaneous  cases. 
30.  Evidence  used  in  the  construction  of  contracts. 

The  following  general  principles  have  been  laid  down,  as  to 
what  constitutes  a  sale. 

1.  A  sale  of  goods  and  chattels  is  a  transmutation  of  proper- 
ty from  one  to  another,  accompanied,  when  practicable,  withde- 


Sect.    I.]  WUAT    CONSTITUTES    A    SALE,  &C.  8 

livery  to  the  purchaser,  in  consideration  of  some  price   or  re- 
compense in  value.(l) 

2.  A  sale  may  be  good  in  part  and  void  as  to  the  residue,  on 
which  some  third  person  has  a  prior  lien.  It  may  be  good  be- 
tween the  parties  and  void  as  to  creditors  :  or  valid  as  to  some 
creditors,  and  void  against  others.  (2) 

3.  Independently  of  the  Statute  of  Frauds,  any  words  import- 
ing a  barga'm,  whereby  the  owner  signifies  his  willingness  and 
consent  to  sell,  and  the  other  party  his  willingness  and  con- 
sent to  buy,  in  prccscnti,  for  a  certain  price,  constitute  a  sale  and 
transfer. (3) 

4.  The  making  of  a  bargain  for  a  chattel  and  payment  of  the 
price  constitute  an  executed  contract,  upon  which  the  vendee 
may  maintain  trover  for  the  thing  sold. (4) 

5.  By  the  law  of  England,  the  sale  of  a  specific  chattel  passes 
the  property  without  delivery.  The  doubt  as  to  this  point  express- 
ed in  the  case  of  Bailey  v.  Culverwell,(5)  can  apply  only  to  a  sale 
of  goods  generally,  where  the  particular  articles  are  not  ascer- 
tained.(6) 

6.  Two  things  are  essential  to  a  transfer  of  the  title  to  per- 
sonal property  upon  a  cash  sale  ;  payment  by  the  vendee,  and 
actual  or  constructive  delivery. (7) 

7.  In  general,  if  no  credit  is  given,  property  does  not  pass  by 
a  sale,  till  payment  be  made.  Blackstone  says,  it  is  no  sale 
without  payment,  unless  the  contrary  is  expressly  agreed.  Per- 
haps this  is  too  strong  language,  as  an  intention  to  give  credit 
may  be  sometimes  implied.  But  such  intention  must  unequivo- 
cally appear  from  the  acts  and  declarations  of  the  parties,(8) 

(1)  Per  Hosmer,  Ch.  J.,  Patten  v.  Smith  5  Conn.  199.  Noy's  Max.  ch.  42.  Shop. 
Touch.  224.    Denn  v.  Diamond,  4  B.  &  C.  246. 

(2)  Bradford  v.  Tappan,  11  Pick.  79. 

(3)  De  Fonclear  v.  Shottenkirk,  3  John.  170. 

(4)  Higgins  V.  Chessman,  9  Pick.  10. 

(5)  2  Mann.  &  Ry.  568. 

(G)  Uixon  V.  Yates, 5  Barn.  &  Ad.  340. 

(7)  Ward  V.  Shaw,  7  Weud.  406. 

(8)  PhiUips  V.  Hunnuwell,  4  Green!.  379. 


4  GENERAL    PRINCIPLES    OF    SALE,    &C.  [Chap.  I. 

8.  If  a  horse  is  bought  in  a  market,  for  which  the  vendee  is 
to  pay  £  10,  if  the  ready  money  be  not  paid,  the  property  is  not 
ahered,  but  the  party  may  sell  him  to  another. (1) 

9.  A  bill  of  lading  is  not  necessary  as  the  means  for  the 
owner  of  goods  to  convey  his  interest  therein.  (2) 

10.  Personal  estate  may  be  transferred  without  deed,  and 
when  a  deed  or  bill  of  sale  becomes  necessary  or  proper,  or  is 
adopted  as  the  most  convenient  mode  of  transfer;  it  is  to  be 
literally  construed,  to  effect  the  intention;  and  not  rigidly  by  the 
precise  rules  relating  to  real  estate, *(3) 

11.  A  certificate  from  one  person  to  another  that  he  has  pur- 
chased property  from  the  latter,  is  not  conclusive  evidence  of  a 
sale  which  actually  passes  the  title,  if  it  was  understood  at  the 
time  that  a  bill  of  sale  be  given  afterwards.  In  this  case,  a  bill 
of  sale  was  afterwards  applied  for  by  the  vendee,  and  upon  pay- 
ment of  the  price,  the  vendor  gave  his  note  for  the  amount.  (4) 

12.  A  broker  altered  the  invoice  of  goods  sold,  from  one 
person  to  another,  and  sent  it  to  the  hitter,  advising  him  that 
for  the  sake  of  simplicity  he  had  made  this  change.  Held,  the 
invoice  constituted  a  contract  of  sale.  (5) 

13.  An  agreement  between  merchants,  that  one  of  them  shall 
take  a  share  in  the  outfit  of  a  ship  and  the  adventure,  is  not  an 
agreement  for  the  sale  of  goods,  within  the  stamp  act.  (6)    • 

14.  If  I  sell  a  horse  for  money,  I  may  keep  him  till  paid; 
but  can  have  no  action  of  debt  till  he  is  delivered.  But  the 
property  passes  by  the  bargain.     If  the  purchaser  presently  ten- 

(1)  Mires  v.  Solebay,  2  Mod.  243. 

(2)  Meyer  v.  Sharpe,  5  Taunt.  80. 

(3)  Stockbridgo  v.  W.  SiockbriJge,  14  Mass.  257.  Hastings  v.  Blue  Hill,  &c.,  9 
Pick.  82. 

(4)  Higgins  v.  Chessman,  9  Pick.  7. 

(5)  Pauli  V.  Simes,  6  C.  &  P.  506. 

(6)  Leigh  v.  Banner,  I  Esp.  403. 

♦  In  Massachusetts,  before  the  revolution,  a  slave,  being  a  personal  chattel,  woiild 
pass  wiihoul  bill  of  sale  or  other  formal  instrument.  Milford  t.  Bellingham,  16  Mass. 
108. 


Sect.    I.]  WHAT    CONSTITUTES    A    SALE,  &C.  6 

der  the  money  and  I  refuse  it,  he  may  take  the  horse  or  have 
an  action  of  detainment.  If  the  horse  die  in  my  stable,  be- 
tween the  bargain  and  delivery,  an  action  of  debt  lies,  because 
the  property  was  changed  by  the  bargain. (1) 

15.  The  mere  circumstance  of  payment  in  advance  does  not 
pass  a  title  to  the  vendee,  though  followed  by  delivery,  if  the 
circumstances  indicate  a  contrary  intention, 

16.  A  agreed  with  the  war  department  to  build  a  fort;  ad- 
vances to  be  made  in  part  payment  for  materials,  delivered  with 
an  invoice  at  the  fort,  and  approved  by  the  engineer,  and,  at  the 
end  of  each  month,  for  the  work  done  also.  Held,  such  ad- 
vances did  not  constitute  a  purchase  of  the  materials  delivered, 
so  as  to  vest  a  property  in  them  in  the  United  Siates.(2) 

17.  Though,  by  the  terms  of  an  agreement,  payment  is  to  be 
made  infuturo,  and  to  precede  delivery  :  yet  the  right  of  pro- 
perty will  pass  to  the  vendee,  if  such  appear  to  be  the  intention 
of  the  parties. 

18.  January  4,  A  agreed  to  sell  B,  and  B  agreed  to  huij  of 
A,  a  stack  of  hay,  for  a  certain  sum  of  money  ;  to  be  paid  for 
on  February  4,  and  allowed  to  stand  on  the  premises  of  A  till 
May  1.  B  agreed  that  the  hay  should  not  be  cut  till  paid  for. 
Before  it  was  taken  by  B,  the  hay  was  destroyed  by  fire.  Held, 
the  above  agreement  constituted  an  immediate  sale,  and  passed 
the  right  of  property  to  B,  though  A  still  retained  the  right 
of  possession.  The  provisions  for  payment  at  a  future  day, 
and  that  payment  should  precede  delivery,  did  not  vary  this 
construction  of  the  contract,  if  the  parties  intended  that  the 
vendee  should  immediately  have  a  property  in  the  goods,  and 
the  vendor  in  the  price.  Nothing  remained  to  be  done  by  the 
vendor,  as  between  him  and  the  vendee.  Upon  these  grounds, 
held,  that  the  vendee,  having  given  a  bill  of  exchange  for  the 
price,  which  he  afterwards  paid,  might  recover  the  amount  in 
an  action  for  money  paid  from  the  vendor. (3) 

(1)  Noy,  83. 

(2)  U.  S.  V.  TiUotson,  Palnc,  305. 

(3)  Tarling  v.  Baxter,  6  B.  i;  C.  360. 


6^  GENERAL    PRINCIPLES    OF    SALE,    &-C.  [Chap.   I. 

19  So  where  an  article  ordered  to  be  made  is  finished  and 
paid  for,  and  the  vendee  does  acts  which  indicate  that  he 
considers  liimself  as  the  owner ;  a  property  passes,  notwith- 
standing orders  from  him  for  an  alteration,  which  are  not  com- 
plied with. 

20.  The  plaintiff  had  ti  chariot  built  to  his  order,  and  paid  for 
it,  and  it  was  finished.  The  plaintiff  then  ordered  an  addition- 
al front  seat.  The  builder  having  delayed  to -make  it,  the  plain- 
tiff repeatedly  sent  for  the  chariot,  and  the  builder  promised  to 
deliver  it.  The  plaintiff",  being  dissatisfied,  ordered  that  the 
chariot  should  be  sold.  The  additional  seat  had  not  been  made, 
as  ordered.  While  the  chariot  stood  in  the  builder's  warehouse 
for  sale,  according  to  usage,  he  became  bankrupt.  The  plain- 
tiff brings  trover  against  his  assignee  for  the  chariot.  Held,  the 
action  would  lie.  Both  parties  had  treated  the  article  as  finish- 
ed ;  the  whole  price  was  paid  ;  and  the  plaintiff  had  often  sent 
for  it.  The  order  for  an  additional  seat  made  no  difference  in 
the  case,  nor  was  the  chariot  "  in  the  order  and  disposition  of 
the  bankrupt,  with  the  consent  of  the  true  owner,"  so  as  to 
pass  to  his  assignee.  The  article  was  in  existence  on  payment 
of  the  price;   and  therefore  the  property  passed. (1) 

21.  After  an  executed  sale,  the  vendor  can  maintain  no  ac- 
tion for  the  goods,  even  for  the  vendee's  benefit,  and  though  the 
latter  has  never  had  possession. 

22.  A  assigns  all  his  interest  in  a  crop  growing  upon  land  of 
B,  to  C.  Held,  this  operated  a  complete  transfer  of  the  pro- 
perty, and  that  for  an  injury  done  to  it,  C  must  bring  an  action 
in  his  own  name.  The  suit  was  brought  in  the  name  of  A, 
and  alleged  an  injury  to  C  as  his  assignee.  But  there  was  no 
necessity  for  suing  in  A's  name,  and  he,  having  parted  with  all 
his  interest,  could  not  maintain  the  action  for  his  own  bene- 
fit.(2) 

23.  After  a  sale  to  one  person,  the  goods  may  be  re-sold  to 
another   by  the  vendor,  with   the  consent  of  the   first  purchas- 

(1)  Carrutlieis  v.  Payne,  5  King.  270. 

(2)  CartBi-  V.  Jaivis,  9  Joliu.  143.     2  Pirl.  Dip.  355. 


Sect.    I.]  WHAT    CONSTITUTES    ASALE,&C.  7 

er  ;  and  the  latter  vendee  will  then  be  alone  liable  to  the  vendor 
for  the  price. 

24.  A  sold  goods  to  B,  and  B,  being  unable  to  pay  for  them, 
transferred  them  to  C,  and  C  promised  A  to  pay  him.  Held, 
this  was  a  new  sale  of  the  goods  to  C,  not  a  mere  agreement 
to  pay  B's  debt.  A  could  have  maintained  no  action  against 
B.(l) 

'25.  An  order  for  several  articles  at  the  same  time,  though  at 
distinct  prices,  is  one  order.  Hence,  the  vendee  is  not  bound 
to  accept  one  article,  unless  all  the  rest  are  furnished.  But  if  he 
does  accept  and  offer  payment  for  one,  he  is  bound  to  pay  for 
all  that  are  supplied.  So  where  three  parcels  of  goods  are  or- 
dered, and  only  one  sent,  but  this  is  accepted  ;  the  vendee  will 
be  bound  to  receive  and  pay  for  the  second,  though  sent  with- 
out the  third.  But  where  different  parcels  of  one  quantity  of 
goods  are  to  be  delivered  at  different  times;  though  one  parcel 
be  delivered  and  accepted,  the  vendor  cannot  sue  for  the  price 
before  the  time  appointed  for  delivery  of  the  remainder;  be- 
cause if  not  delivered,  the  vendee  may  return  the  parcel  which 
he  received.  But  unless  he  does  return  it,  the  vendor  may  sue 
for  the  value,  though  not  the  contract  price,  of  the  part  accept- 
ed, after  the  time  appointed  for  delivery  of  the  whole.  But  he 
will  be  liable  to  an  action  by  the  vendee  for  breach  of  contract. 
If  from  the  terms  of  the  contract  it  may  be  implied,  that  each 
parcel  of  the  property  sold  is  to  be  paid  for  on  delivery,  an  ac- 
tion for  the  price  may  be  maintained  accordingly.  Thus  where 
one  contracts  for  certain  numbers  of  a  periodical  publication, 
to  be  delivered  as  published,  at  so  much  per  number,  it  seems, 
he  is  liable  to  pay  for  the  numbers  delivered,  before  delivery  of 
the  whole.  (2) 

26.  Where  a  specific  chattel  is  sold  and  the  price  paid,  since, 
as  has  been  already   stated,  the  property  vests  in  the  vendee,  if 

(1)  Biowning  v.  Stallard,  5  Taun.  460. 

(2)  Baldey  v.  Parker,  2  B.  &  C.  37.  Champion  v.  Short,  1  Camp.  53,  see  55  lb. 
n.  Waddington  V.  Oliver,  2  N.  R.  61.  Walker  v.  Di.xon,  2  Stark.  281'.  Shipton 
V.  Casson,  5  B.  «fe  C.  378.  Oxendale  v.  Wetherell,  9.  386.  Withers  v.  Reynolds,  2 
B.  &  Ad.  882.     Mavor  v.  Payne,  3  Bing.  286,  6  Moo.  114. 


8  GENERAL    PRINCIPLES    OP    SALE,    &,C.  [Ch.ip.    I. 

the  article  be  left  with  the  vendor,  the  latter  is  not  liable  for  any 
loss  or  deterioration,  unless  guilty  of  gross  negligence.(l) 

27.  A  agreed  to  sell  to  B  a  quantity  of  beef;  and  soon  af- 
terwards gave  him  a  bill  of  parcels,  and  received  payment;  with 
the  agreement  that  the  property  should  remain  in  the  hands  of 
A,  till  forwarded  to  New  York.  Seven  or  eight  months  after- 
wards, B  received  a  portion  of  the  beef,  which  was  of  bad  quali- 
ty, and  the  whole  upon  inspection  was  found  unmerchantable. 
In  an  action  brought  by  B  for  non-delivery  of  good  and  mer- 
chantable beef,  held,  a  title  passed  to  B  upon  payment,  and  the 
action  could  not  be  sustained. (2) 

28.  An  order  for  goods,  found  in  the  hands  of  the  drawee,  is 
prima  facie  evidence  of  a  sale  to  the  drawer,  and  a  delivery  at 
his  request.  It  is  otherwise  with  orders  for  the  payment  of 
money.  These  are  presumed  to  be  drawn  upon  funds  in  the 
drawee's  hands,  who  therefore  can  maintain  no  action  against 
the  drawer,  unless  he  offers  evidence  to  rebut  this  presump- 
tion.(3) 

29.  Where  a  vendor  draws  an  order  upon  the  depository  of 
the  goods,  who  accepts  it ;  this  is  a  sale  according  to  the  terms 
of  such  order.  And  an  order  of  this  kind  is  presumed  to  be  for 
value,  though  not  expressed  or  proved  as  beingybr  value  receiv- 
ed, especially  if  it  is  accepted.  The  party  receiving  the  order 
is  presumed  to  have  a  beneficial  interest  in  the  property,  and  to 
be  something  more  than  a  mere  agent.  A  parol  acceptance  of 
the  order  is  binding  upon  the  depository ;  and  an  indorsement 
and  delivery  of  it  with  intent  to  assign,  constitutes  an  assign- 
ment. If  the  order  has  been  accepted,  such  indorsement  and 
delivery  constitute  a  sale,  which  is  sufficient  consideration  for 
a  promise  by  the  vendee. 

30.  An  exchange  of  chattels  is  subject  to  substantially  the  same 
rules  as  a  sale.     The  difference  between  these  two  transactions 

(1)  Lansing  V.  Turner,  2  John.  13.     Inst.  1.  24.     3  Lit.  Scl.  Cas.  217.     4  Bibb.  66. 

(2)  Lansing  v.  Turner,  2  John.  13. 

(3)  Alvord  V.  Baker,  9  VVentl.  323. 

(4)  Bailey  v.  Johnson,  9  Cow.  115. 


Sect.    I.]  WHAT    CONSTITUTES    A    SALE,  &,C.  9 

is  this,  that  tiie  one  is  a  transfer  for  vionrj/,  the  other  for  goods^ 
by  way  of  barter. (1) 

31.  In  case  of  an  exchange  of  property,  unless  there  is  fraud, 
the  same  formalities  are  requisite  to  effect  a  re-exchahge,  which 
were  required  in  the  original  transaction.  Thus,  the  plaintiff 
contracted  with  A,  to  exchange  soap  belonging  to  the  plaintiff 
for  a  quantity  of  wine  belonging  to  A.  The  soap  was  deliver- 
ed. The  wine  was  in  (he  liands  of  the  custom-house  officer. 
Being  of  bad  quality,  it  was  marked  as  Fayal  wine,  though  real- 
ly Madeira.  The  plaintiff  being  dissatisfied  because  it  was  thus 
marked  and  therefore  not  subject  to  debenture,  the  parties  sub- 
mitted the  matter  to  arbitrators,  who  awarded,  tliat  as  the  wine 
still  remained  in  the  custom-house,  it  should  continue  to  be  the 
property  of  A,  and  the  soap  be  returned  or  paid  for  at  the 
market  price,  to  which  award  both  the  plaintiff  and  A  gave  their 
assent.  No  fraud  was  charged  upon  either  party.  The  soap 
beincr  attached  as  belonging  to  A,  held,  the  plaintiff  could  not 
maintain  an  action  against  the  officer,  there  having  been  no  ef- 
fectual re-ejchange,  and  A  having  elected,  by  not  returning  the 
soap,  to  keep  and  pay  for  it.{2) 

32.  The  law  implies  a  contract  to  pay  for  goods,  from  their 
having  belonged  to  the  plaintiff,  and  coming  to  the  possession 
of  the  defendant,  if  unaccounted  for. (3) 

33.  A  fraudulently  persuades  B  to  sell'  goods  to  C,  an  insol- 
vent person,  and  himself  obtains  possession  of  them.  Held,  B 
mio-ht  maintain  indebitatus  assumpsit  against  A  for  the  price. 
A  cannot  set  up  in  defence  the  sale  to  C,  because  procured  by 
his  own  fraud,  and  independently  of  this,  mere  possession  of  the 
property  raises  an  implied  to  promise  to  pay  for  it. (4) 

34.  Whether  a  contract  for  sale  has  been  completed,  is  a 
question  for  the  jury.  The  Court  will  not  order  a  nonsuit  for 
want  of  full  proof  of  the  contract.(5) 


(1)  Denn  v.  Diamond,  4  B.  &  C.  246. 

(2)  Quincy  v.  Tilton,  5  Greenl.  277. 

(3)  Hillv.  Penott,  3  Tatin.  274. 

(4)  lb. 

(3)  De  Ridde,  v.  M  Knight,  13  John.  294. 
o 


10  GENERAL    PRINCIPLES    OF    SALE,    &>C.  [Chap.   I. 

35.  If  a  tradesman  finish  goods  according  to  the  order  of  one 
person,  and  sell  them  to  another,  and  the  former  has  other  ar- 
ticles made  for  him  within  the  stipulated  time  ;  he  cannot  main- 
tain trover  against  the  latter  for  those  first  manufactured. (1) 

36.  A  transaction,  which  is  in  effect  a  mere  exchange  of  se- 
curities between  two  parties,  though  connected  with  the  furnish- 
ing of  goods  by  one  for  the  other's  benefit,  cannot  be  treated  as 
a  sale,  so  as  absolutely  to  charge  the  latter  as  vendee  of  the 
goods.  Thus,  A  delivered  to  B,  a  ship-master  and  joint  owner 
with  C,  a  quantity  of  wheat  to  be  carried  to  New  York  and 
there  sold.  It  was  agreed  between  A  and  C,  that  B  should  ap- 
propriate the  proceeds  to  the  use  of  C  in  New  York,  who  was 
to  pay  A  the  amount  received  by  B.  That  is,  if  B  sold  on 
credit,  taking  notes  in  payment,  C  was  to  give  corresponding 
notes  to  A  ;  if  for  cash,  then  C  was  to  pay  cash.  B  sold  on 
credit,  according  to  the  usual  course  of  trade,  to  D,  taking  his 
note  at  ninety  days  ;  and  C  gave  a  similar  note  to  A,  upon 
which  A  brings  the  present  action.  Before  the  expiration  of 
the  ninety  days,  D  had  become  insolvent.  Held,  the  transac- 
tion was  an  exchange  of  notes  for  the  accommodation  of  A  ;  that 
the  property  had  not  vested  in  C,  and  he  was  not  liable  to  the 
present  suit. (2) 

37.  No  action  lies  for  the  price  of  goods  sold,  where  there  is 
a  material  deviation  by  the  vendor  from  the  terms  of  sale,  and 
a  refusal  by  the  vendee  to  receive  the  property. 

38.  A,  residing  at  Albany,  ordered  certain  goods  from  B  at 
New  York.  A  portion  of  them  were  sent,  but  on  a  different 
credit  from  that  stated  in  the  order.  The  vessel  was  wrecked, 
and  a  part  of  the  cargo  lost.  A  refused  to  receive  the  remain- 
der, and  immediately  notified  B  that  he  did  not  consider  the 
goods  as  belonging  to  him,  on  account  of  the  above  deviation 
from  the  order.  Held,  he  was  not  liable  lor  the  price,  the  facts 
showing  neither  an  express  nor  implied  assumpsit. (3) 

39.  In  addition  to  the  transfer  by  sale  and  purchase,  which  is 

(1)  Mucklow  V.  JMaiif-les,  1  Taun.  318.     (See  Woods  v.  RlisscH,  5  B.  &.  A.  942.) 

(2)  Herring  v.  Marvin,  5  John.  333. 

(3)  Bruce  v.  Pcarsyn,  3  John.  334. 


Sect.    I.]  WHAT    CONSTITUTES    A    SALE,  &C.  11 

the  act  of  parties,  a  title  to  personal  property  may  pass  by  act 
of  law,  or  by  recovery  of  damages  in  trover,  trespass,  book-debt 
or  assumpsit.(l) 

40.  Where  one  is  sued  in  trover,  a  mere  default  has  not  the 
effect  of  transferring  the  title  of  the  goods  to  him.  There  must 
be  a  judgment ;  because,  in  the  former  case,  judgment  might  be 
arrested  or  the  defiiult  taken  off. (2) 

41.  The  title  to  a  chattel  is  transferred  by  operation  of  law, 
only  when  the  damages  recovered  by  tlie  former  owner,  in  a  suit 
against  one  who  has  wronsjfully  interfered  with  it,  include  the 
value  of  such  chattel.  Thus  the  plaintiff  brings  trespass  qu. 
claus.  for  cutting  and  carrying  away  his  timber,  and  in  this  suit 
attaches  the  timber,  and  takes  possession  of  it  as  reclaimed. 
The  defendant  confesses  the  trespass,  and  the  plaintiff  formally 
abandons  so  much  of  the  suit  as  concerns  the  asportation  of  the 
timber,  and  proceeds  for  the  breaking  of  the  close  and  prostrat- 
intr  the  trees,  for  which  he  recovers  nominal  damages.  Held, 
the  judgment  in  this  suit  did  not  vest  the  property  of  the  timber 
in  the  defendant.  The  plaintiff  was  not  estopped  by  his  attach- 
ment of  the  timber,  to  deny  that  it  belonged  to  the  defendant ; 
for  such  attachment  might  be  founded  on  erroneous  informa- 
tion. Nor  was  the  return  of  the  officer  conclusive  upon  the 
same  point.  It  is  a  common  case,  for  an  officer  to  return  an 
attachment,  and  afterwards  to  justify  himself  for  not  seizing 
the  property  on  execution,  by  showing  that  it  did  not  in  fact 
belonfr  to  the  debtor.  Moreover,  the  officer's  return  must  be 
taken  in  connection  with  the  other  parts  of  the  same  record,  in- 
cluding the  judgment  ;  which  show  conclusively  that  the  title 
had  not  vested  in  the  defendant. (3) 

42.  The  question  has  sometimes  arisen,  whether  it  is  neces- 
sary to  the  validity  of  a  sale,  that  the  thing  sold  should  be  in 
existence  at  the  time,  or  whether,  if  sold  in  expectation  of  its 
future  existence,  or  under   a  contract  to   manuHicture  it,  a  title 


(1)  Canaan  v.  GreenwooJs,  1  Conn.  7. 

(2)  Carlisle  v.  Burley,  3  Grcciil.  250. 

(3)  Loomis  V.  Green,  7  Green!.  386. 


12  GENERAL    PRINCIPLES    OF    SALE,    &C.  [Chap.    I. 

will   vest  in  the  vendee,  whenever  the   article  is    brought   into 
being.* 

43.  It  is  said  to  be  now  well  settled,  that  a  possibility  coupled 
with  an  interest,  is  assignable;  that  a  man  may  grant  that  which 
he  \\di{\\  jjotentially ,  though  not  actually.  As  if  a  person  grants 
all  the  tiihe  wool  which  he  shall  have  such  a  year,  the  grant  is 
good  in  its  creation,  thougli  it  may  happen  that  he  shall  have  no 
tithe  wool  in  that  year.(l) 

44.  In  principle,  there  seems  to  be  no  distinction,  with  refer- 
ence to  the  point  now  under  consideration,  between  sales  of 
chattels  in  possession,  and  assignments  of  vhoscs  in  action;  and 
the  latter  have  been  often  held  assignable,  though  consisting  in 
future  and  contingent  debts.  Thus,  it  is  said,  a  contingent 
debt  may  be  assigned  in  Equity,  and  when  the  contingency  hap- 
pens, the  debtor  is  liable  to  the  assignee.  So,  where  the  master 
of  a  vessel  drew  a  bill  upon  a  consignee  of  goods,  for  the  money 
that  might  be  due  to  the  former  for  freight  on  delivery  of  the 
goods ;  held,  this  was  an  assignment  of  the  demand  for  freight 
when  it  should  accrue. (2) 

45.  Where  it  is  agreed  between  two  parties,  that  one  shall  do 
a  certain  piece  of  work  for  the  other,  the  foundation  or  suhstra- 
ium  of  which,  being  in  existence  at  the  time,  is  conveyed  to  the 
latter;  all  materials  subsequently  affixed  will  become  his  pro- 
perty, by  accession.  Thus  if  the  keel  of  a  ship  is  conveyed,  in 
connection  with  a  contract  by  the  vendor  to  finish  it  for  the 
vendee,  every  stick  of  timber  that  goes  into  the  vessel  becomes 
the  vendee's  property.  It  is  the  rule  of  the  civil  law,  "propri- 
etas  toiius  navis  carinoe  causam  scquitur."  The  same  princi- 
ple would  apply  to  an  unfinished  house,  sold  by  the  builder,  and 
subsequently  completed  by  him  (3)     (See  Sect.  VI.  6.) 

(1)  Bigclow  V.  Willson,  1  Pick.  493.  Hob.  132.  2  Rollc,47,  S,  sec  5  Pick.  522.  6. 
209.  1  Cov.  &  Hughes,  345(4).  Walker  v.  Russell,  17  Pick.  280.  11  Mass. 
167,  n. 

(2)  Crocker  v.  Whitney,  10  Mass.  316.    Cults  v.  Pcikins,  12.  206. 

(3)  Glover  v.  Austin,  6  Pick.  220. 

*  By  tlie  civil  law,  it  seems  such  sale  is  valid,  as,  for  instance,  of  fuUire  fruits  ov 
a  future  draupht  of  fishes.     Domat 


Sect.    I.]  WHAT    CONSTITUTES    ASALE,&C.  13 

4G.  The  following  case  was  decided  in  North  Carolina. 
Agreement  to  deliver  the  plaintiff  the  first  colt  which  should  be 
foaled  by  the  defendant's  mare  Held,  a  title  to  the  coll  hereby 
vested  in  the  plaintiff.(l)  So,  in  Tennessee,  the  owner  of  a  mare 
during  gestation  may  sell  her  future  offspring,  the  property  to 
vest  in  possession  whenever  such  offspring  shall  be  born.  In 
general,  no  right  can  be  communicated,  to  property  of  which 
the  bargainor  has  no  title  in  possession,  actually  or  potentially. 
But  the  case  above-mentioned  does  not  fall  within  this  principle. 
It  is  like  that  of  a  growing  fleece,  a  crop  of  fruit  or  grain. 
Hence  where  A  agrees  with  B  that  the  foal  of  his  (A's)  mare 
shall  belong  to  C,  and  after  the  colt  is  born  conveys  it  to  D,  C 
may  maintain  trover  against  D.  ;2) 

47,  In  the  foregoing  section,  it  has  not  been  considered  what 
communications  between  two  parties  are  necessary  to  constitute 
a  contract,  in  distinction  fro*m  a  mere  ofcr  or  proposal,  to  sell 
or  buy;  because  this  point  has  no  exclusive  reference  to  con- 
tracts of  sale.  It  seems  not  inappropriate,  however,  to  stale 
here  the  general  principles  on  this  important  subject. 

48.  Where  there  is  a  written  offer  to  sell,  an  acceptance  con- 
summates the  agreement,  if  the  offer  is  still  standing.     And  it  is 
presumed  to  be  so  until  the  time  fixed,  or,  if  none  were  appoint- 
ed, till   it  is  expressly  revoked   or   countervailed    by  a  contrary 
presumption.     If  the   other   party  agrees  to  decide  whether  he 
will  accept  the  offer,  upon  the  happening  of  a  certain  event,  no 
bargain  arises  till  such  decision,  though  the  event  have  happen- 
ed.    There  is  a  binding  agreement,  when  the  minds  of  two  per- 
sons meet,  as  signified   by  acts,  although   both   do  not   know  of 
such   concurrence    at   the   time.     A   bargain   is  closed,    where 
nothing  mutual  remains  to  be  done,  to  give  either  party  a  right 
to  have  it  effected.     Until    both   parties  are  agreed,  either    may 
withdraw  an  offer  which   he  has   made.     But  where  A  offers  to 
sell  goods  to  B,  receiving'an  answer  by  return  of  mail  ;   but,  by 
A's  misdirecting   the  letter,  B  does   not  immediately  receive  it, 


(1)  Fonville  v.  Casey,  1  Murphy,  389. 

(2)  M'Carly  v.  Blevms,  3  Yerg.  195. 


14  GENERAL    PRINCIPLES    OF    SALE,    &,C.  [Chap.   1. 

and  sends  an  answer  by  the  first  mail,  accepting  the  proposal, 
which  reaches  A  two  days  later  than  he  expected  ;  A  is  bound 
by  the  contract.  He  must  be  considered  in  law  as  making,  dur- 
ing every  instant  his  letter  was  travelling,  the  same  offer  to  B, 
and  B's  acceptance  completed  the  contract. (1) 

49.  But,  in  the  following  case,  a  different  decision  was  made. 
A  offered  to  buy  of  B  a  certain  number  of  barrels  of  flour,  to 
be  delivered  at  Georgetown  by  the  first  water,  and  to  pay  a  cer- 
tain price  for  them.  He  also  demanded  an  answer  by  the  re- 
turn of  the  wagon  which  carried  the  letter.  This  wagon  was 
in  use  by  B  to  carry  flour  from  his  mill  to  Harper's  ferry,  near 
which  A  then  was.  B  signified  his  acceptance  of  the  proposi- 
tion by  the  first  regular  mail  to  Georgetown,  where  the  letter 
was  received  by  A,  but  no  letter  was  sent  to  Harper's  Ferry. 
Held,  .\  was  not  bound.  (2) 


Section  H. — payment  of  earnest. 

1.  Judge  Swift  remarks,  that  payment  of  earnest  does  not 
change  the  property  of  the  thing  sold,  but  merely  binds  the 
bargain,  and  gives  the  vendee  a  right  to  demand  the  thing.* 
But  the  same  author  elsewhere  says,  if  A  sell  B  a  horse  for  <£10, 
and  B  pay  earnest,  or  sign  a  note  of  the  bargain,  and  the  horse 
die  in  the  vendor's  custody  before  payment,  still  he  is  entitled 
to  it  (payment,)  because,  by  the  contract  the  property  vested  in 
the  vendee.  If  a  day  of  payment  is  given,  payment  of  earnest 
has  no  operation,  because  the  bargain  is  complete  without 
it.(3) 

(1)  Maciicr  V.  Frith,  6  Wend.  103.     Adams  v.  Lindscll,  1  B.  &  A.  681.     3  M.  & 
R.  97.     4  King.  661. 

(2)  Eliason  v.  Hensliaw,  4  Wheat.  225. 

(3)  I  Swift's  Dig.  377.     lb.  380. 


*  It  seems,  the  payment  of  earnest  binds  only  the  bargain,  not  the  property.  It 
gives  the  vend.;e  a  ri<;ht  to  demand  tho  article,  but  such  demand,  without  payment  of 
the  whole  price,  is  void.     1  .Salk.  1 13. 


Sect.  II.]  PAYMENT  OF  EARNEST.  15 

2.  After  the  payment  o(  earnest,  ihe  vendor  cannot  re-sell  the 
property  without  default  of  the  vendee.  If  the  latter  does  not 
come  and  pay  for  and  remove  the  article,  the  vendor  should  re- 
quest him  to  do  so.  If  he  still  neglects  to  do  it  in  con- 
venient time,  the  agreement  is  dissolved,  and  the  vendor  may 
re-sell.(l) 


Section  III. — whether  a  contract  is  a  sale  on  a  bailment. 

1.  The  important  question  often  arises,  whether  a  transfer  of 
personal  property  constitutes  a  sale  or  a  bailment ;  that  is, 
whether  it  passes  an  absolute  title  to  the  person  receiving  the 
property,  leaving  in  the  former  owner  only  a  claim  for  the  value 
or  agreed  price,  or  a  mere  temporary  and  qualified  interest,  sub- 
ject to  a  reversionary  claim  on  the  part  of  the  vendor.  It  will 
be  seen  by  the  cases  cited,  that  a  transaction  which  was  ori- 
ginally a  bailment,  may  by  some  subsequent  act  or  omission  of 
the  bailee,  become  a  sale. 

2.  A  put  into  the  hands  of  the  defendant  a  carriage,  for  the 
purpose  of  paying  debts  due  to  him  and  the  plaintilf.  The  de- 
fendant kept  the  carriage  more  than  a  year,  repaired  it  on  his 
own  account,  the  plaintiff  refusing  to  join  in  the  expense,  used 
it  as  his  own,  and  never  sold  it,  although  he  twice  offered  it  for 
sale.  The  carriage  was  sufficient  in  value  to  pay  both  debts. 
Held,  the  defendant  was  liable  to  the  plaintiff  as  purchaser  of 
the  carriage.  He  had  a  reasonable  time  to  effect  a  sale,  and 
should  have  sold  at  auction,  if  he  could  not  privately.  His  of- 
fers to  sell  might  have  been  merely  collusive. (2) 

3.  The  plaintiff  delivered  a  quantity  of  wheat  to  the  defen- 
dant at  the  mill  of  the  latter,  to  be  exchanged  for  flour  j  and  the 
defendant  put  the  wheat  into  his  ovv'n  common  stock.  The  mill 
being   afterwards  burnt,  the  defendant  refused  to  deliver  the 

(1)  7  E.571. 

(2)  Norton  v.  Squire,  16  John.  225. 


16  GENERAL    PniNCIPLES    OF    SALE,    &C.  [Chap.  I. 

flour,  and  the  plaintiff  brings  assumpsit  against  him.  Held,  the 
transaction  was  not  a  bailment,  but  a  sale,  and  the  defendant 
therefore  liable  to  this  action.(l) 

4.  B  delivered  to  A  six  cows,  under  the  verbal  agreement 
that  they  should  be  returned  after  two  years,  or  the  value  then 
paid,  unless  A  should  be  dissatisfied  with  an  exchange  of  land 
made  at  the  same  time  between  the  parties ;  in  which  case,  the 
cows  were  to  be  the  property  of  A  forever.  The  two  years  hav- 
ing expired,  A  expressed  himself  as  satisfied  with  the  exchange, 
but  refused  to  deliver  or  pay  for  the  cows.  B  brings  assumpsit 
against  A,  declaring  upon  a  quantum  meruit.  Held,  the  tran- 
saction was  a  sale,  not  a  bailment;  that  it  was  not  within  the 
Statute  of  Frauds,  though  verbal  and  in  part  to  be  performed, 
so  far  as  related  to  payment,  after  a  year,  it  being  partly  execut- 
ed by  delivery;  and  that  even  if  within  the  statute,  the  plaintiff 
might  recover  upon  a  quan.  mcr.{2) 

5.  The  defendant  received  from  the  plaintiff  a  quantity  of 
leather,  and  gave  him  therefor  the  following  receipt — "  received 
the  following  leather,  viz.,  &c.,  which  I  agree  to  pay  for  as  fol- 
lows; one  shilling  deduction  to  be  made  on  each  side  of  upper 
leather  from  the  price  above,  and  two  shillings  per  pound  from 
the  sole  leather,  with  the  privilege  of  returning  any  quantity  of 
said  leather,  remaining  on  hand  at  settlement."  Held,  this  was 
a  sale,  not  a  delivery  upon  commission  ;  that  parol  evidence  was 
inadmissible  to  control  the  terms  of  the  receipt;  and  that  a  loss 
of  the  leather  by  fire  must  be  borne  by  the  defendant.  The 
privilege  of  returning  such  part  as  remained  unsold,  was  a  pro- 
vision for  the  benefit  of  the  defendant  as  to  the  mode  of  pay- 
ment. Had  the  delivery  been  on  commission,  there  would  have 
been  some  provision  as  to  compensation  or  rate  of  commission. 
But  the  deduction  mentioned  in  the  receipt  did  not  admit  this 
construction.  The  defendant  agreed  to  pay  for  the  leather  at  a 
certain  rate ;  hence  the  trsthsaction  could  not  be  a  bailment. 
The  deduction  was  to  be  in  the price.{S) 

(1)  Ewiii«  V.  French,  1  lilac.  3o4. 

(2)  Holbiook  V.  Annstrung,  1  Fairf.  31. 

(3)  Marsh  v.  Wickhani,  14  Juhii.  167. 


Sect.    III.]      WIIGTIIER     A     CONTRACT     IS    A    SAI-E,    &.C .  17 

6.  Dechiration  in  general  assumpsit  for  goods  sold  and  deliv- 
ered. The  evidence  showed  a  consignment  for  the  purpose  of 
sale,  and  a  sale  of  a  portion  of  the  property.  Held,  this  was  a 
special  bailment,  and  the  action  did  not  lie.(l) 

7.  A  ijiil  of  sale  authorized  the  vendee  to  take  possession 
of  the  property  at  pleasure,  and  account  for  it  to  the  owner  at 
the  auction  price.  Held,  the  vendee  was  accountable  only  for 
that  portion  of  the  property  which  he  took,  and  not  even  for 
this,  unless  his  conduct  discovered  an  intention  to  make  it  his 
property,  or  gross  negligence,  sufficient  to  render  him  account- 
able.C2) 

8.  Contracts  o^  sale  or  return,  or  by  which  the  article  is  to  be 
returned  unless  sold,  seem  to  occupy  an  intermediate  ground 
between  a  sale  and  a  bailment.  Such  contracts  have  been  ad- 
judged legally  valid. (3) 

9.  By  a  written  contract  between  A  and  B,  A  was  to  furnish 
B  from  time  to  time  with  goods,  to  be  sold  for  cash,  lumber, 
country  produce,  6lc.  ;  but  not  otherwise.  The  goods  or  the 
proceeds  of  them  to  be  held  by  B  as  A's  property,  the  former  to 
be  charged  to  B  on  the  books  of  A,  and  all  the  articles  receiv- 
ed in  exchange  credited,  and  the  business  to  be  carried  on  in 
B's  name.  No  provision  was  made  for  compensation  to  B.  The 
word  agent  appeared  on  B's  sign,  and  his  agency  was  well  known. 
The  goods  in  possession  of  B  having  been  attached  by  a  creditor 
of  B,  whose  demand  accrued  before  they  came  into  his  hands, 
and  the  jury  having  negatived  fraud,  held,  A  should  have  judg- 
ment against  the  attaching  officer.  The  rule,*  that  delivery  of 
goods,  to  be  returned  or  something  instead  of  them  at  the  option 
of  the  receiver,  constitutes  a  sale,  was  held  not  to  apply  to  fac- 
tors and  agents.  The  case  might  have  been  diffijrent,  had  the 
vendee  originally  owned  the  goods  and  sold  them  to  the  ven- 
dor.(4) 

(1)  Colman  v.  Price,  1  Blac.  303. 

(2)  Durkee  v.  Leland,  4  Verra.  612. 

(3)  Meldmm  v.  Snow,  9  Pick.  444. 

(4)  Blood  V.  Palmer,  2  Fairf.  414. 


*  Recognized  in  Hurd  v.  West,  7  Cow.  752,  Jones, 


102 


18  6ENERAI,    PRINCIPLES    OF    SALE,  <fec.  [Chap.  I. 


Section   IV. — conditional  sale. 

1.  A  contract  or  sale  of  a  chattel    personal,  as  an   ox  or   the   * 
like,  may  be  upon  condition,  and  the  condition  doth  always  at- 
tend and  wait  upon  the  estate  or  thing  whereunto  annexed  ;  so 
that  though  the   same  do  pass  through   the  hands   of  a  hundred 
men,  it  is  still  subject  to  the  condition. *(1) 

2.  If  the  vendor  trusts  to  the  vendee's  promise  to  perform 
the  conditions  of  sale,  and  delivers  the  property,  the  title  passes. 
But  if  performance  and  delivery  are  understood  to  be  simulta- 
neous, possession  obtained  by  artifice  and  deceit  does  not  pass  a 
title. (2")     (See  Delivery.) 

3.  A  bill  of  sale  apparently  absolute  may  be  proved  to  be  con- 
ditional by  parol  evidence  offered  by  both  parties. (3) 

4.  It  is  sometimes  a  material  question,  whether  a  condition 
annexed  to  an  absolute  sale  constitutes  a  mortgage,  or  merely 
gives  to  the  vendor  the  right  of  re-purchasing  the  property  on 
certain  terms. 

5.  To  an  absolute  bill  of  sale  signed  by  the  vendor  was  at- 
tached a  condition  signed  by  the  vendee,  as  follows — "  the  con- 
dition of  the  above  obligation  is  such,  that  if  A  pays  B  the  above 
sum,  &c.  by  Jan.  1,  1827,  &c."  Held,  this  was  not  a  mort- 
gage, but  a  sale  with  liberty  to  re-purchase,  and  that  the  word 
pay  in  the  condition  did  not  constitute  a  covenant  by  the  ven- 
dee to  pay.  To  constitute  a  deed  a  mortgage  upon  its  face,  it 
must  show  the  consideration  to  be  either  a  debt  due,  or  money 

(1)  Shep.  Touch.  118,  19,20. 

(2)  Harris  v.  Smith,  3  S.  &  R.  20. 

(3)  Smith  V.  Tilton,  1  Fairf  350. 


*  In  Pennsylvania  it  is  held,  that  if  possession  of  goods  be  delivered  to  the  vendee, 
but  not  to  become  his  property  till  payment  of  the  wliole  price,  iho  a>;recmcnt  is  void 
against  creditors  of  the  vendee,  whether  they  trusted  him  on  iho  strength  of  the  goods 
or  not.  Martin  V.  Mathioli,  14  S.  &  R.214.  But  see  9  Greenl.  47.  6  Har.  &  J. 
16S. 


Sect.  IV.]  coNonioNAL  sale.  19 

lent  at  the  time,  or  else  must  contain  a  covenant  to  pay.  The 
intention  of  the  parties  at  the  time  changes  a  deed  into  a  mort- 
gage ;   and  this  may  be  shown  by  parol  evidence. (1) 

6.  A,  having  the  right  to  re-purchase  certain  property  from 
B,  made  application  to  C  to  take  an  assignment  of  the  condi- 
tion, pay  the  money,  and  receive  a  conveyance  of  the  property 
as  security,  to  which  C  assented.  A  and  C  went  to  B  at  the 
day,  and  C  tendered  the  money  and  requested  a  conveyance  to 
himself.  B  refused  to  make  such  conveyance,  but  offered  to  re- 
ceive the  money  and  convey  to  A,  which  proposal  C  declined 
accepting.  Held,  these  facts  showed  no  performance  by  A,  and 
B  was  not  bound  to  convey  to  any  one  but  him. (2) 

7.  The  following  cases  furnish  miscellaneous  examples  of  con- 
ditional sale. 

8.  By  a  written  agreement  between  A  and  B,  the  former  was 
to  give  the  latter  three  horses  and  the  gear  belonging  to  them 
for  $200 ;  in  consideration  of  which,  B  agreed  to  work  out  the 
amount  by  carting  at  seventy  cents  per  thousand,  till  the  pro- 
perty was  paid  for.  A  to  pay  B  one  half  the  amount  earned  by 
B  for  carting  during  the  season,  till  the  property  should  be  paid 
for.  The  horses,  &.c.  to  remain  the  property  of  A,  till  worked 
out  or  paid,  any  agreement  to  the  contrary  notwithstanding.  B 
to  attend  to  the  carting  and  furnishing  carts  necessary  for  de- 
livering brick  to  buildings  and  wood  to  kiln,  at  ihe  above  price, 
to  the  brick-yard.     At  the  end  of  the  season — January  1,  1836 

whichever  party  is  in  debt  upon  settlement,  to  be  paid  in  cash. 

If  B  refused  to  cart  when  called  on,  the  horses,  &c.  to  be  re- 
turned, and  the  agreement  void,  and  B  to  forfeit  the  balance  of 
cash  remaining  with  A  as  collateral.  Held,  only  the  right  of 
possession  passed  to  B,  till  payment  of  8200  by  carting  ;  and 
this  right  re-vested  in  A,  whenever  B  refused  to  pay  the  price 
agreed  on  ;  that  B,  after  paying  by  his  labor  for  the  horses,  &c. 
could  in  no  event  forfeit  them.  If,  before  such  payment,  he  re- 
fused to  cart  for  A,  he  was  to  lose  the  possession,  and  forfeit 
what  he  had  paid. (3) 

(1)  Hickman  v.  Caiaiell.  9  Very.  17-2. 

(-2)  lb. 

(3)  Hulin  V.  LoMii- iWiiail.  200. 


20  GENERAL    PRINCIPLES    OF    SALE,    &C.  [Chap.     I. 

9.  A  agreed  to  cut  all  the  timber  from  B's  land,  and  carry  it 
to  B's  mill,  to  be  sawed  into  boards;  A  to  have  a  certain  por- 
tion of  the  boards,  but  B  to  remain  the  owner  till  certain  debts 
of  A  were  paid,  and  the  whole  agreement  fulfilled.  Held,  this 
was  a  valid  contract,  and  the  sale  of  a  part  of  the  logs,  after 
being  taken  from  the  land,  to  one  having  notice  of  its  terms, 
passed  no  title  as  against  B.(l) 

10.  A  town  in  Massachusetts,  by  virtue  of  St.  1818,  oh.  106, 
sold  to  one  A  the  right  of  fishing  in  a  certain  river,  upon  condi- 
tion that  they  should  sell  no  further  right.  The  town  afterwards 
sold  another  right  of  fishing  to  B,  upon  condition  to  be  void,  if 
the  town  could  not  lawfully  make  such  sale.  A  refused  to  ac- 
cept and  pay  for  the  privilege  sold  to  hiu),  but  united  with  B  in 
carrying  on  the  fishery  under  B's  rigiit.  Held,  although  the 
sale  to  B  was  void,  the  town  could  not  maintain  an  action  against 
A  for  the  price  which  he  agreed  to  pay.  The  condition  in  the 
conveyance  to  A  was  intended  for  his  benefit.  The  town,  hav- 
ing pretended  to  convey  the  privilege  to  B,  were  estopped  to 
deny  their  power  so  to  do. (2) 

11.  A  delivered  to  B  a  quantity  of  wool,  taking  the  following 
receipt,  "  Received,  &c.  wool  to  manufacture  into  cloth,  &c., 
the  wool  to  be  reckoned  at  seventy-five  cents  per  pound,  amount- 
ing, (Sic,  which  amount  I  agree  to  pay  in  six  months.  The 
vvool,  before  being  manufactured,  after  being  manufactured,  or 
in  any  stage  of  manufacturing,  to  be  the  property  of  A,  till  the 
above  amount  is  paid."     The  transaction  was  proved  to  be  bona 

fide.  Wool  received  into  the  manufactory  from  different  per- 
sons was  usually  kept  distinct,  while  in  the  process  of  manufac- 
ture. Held,  that  payment  by  B  was  a  condition  precedent  to 
his  becoming  owner  of  the  wool,  even  with  regard  to  his  credi- 
tors. There  was  no  fraud  against  creditors ;  none  was  intend- 
ed, nor  was  there  any  concert  or  deception.  The  creditors  of 
B  had  no  reason  to  suppose  him  the  owner  of  the  property,  unless 
they  were  notified  of  the  above  transfer:  and  in  that  case,  they 
must  also  have  been  acquainted  with  the  particular  terms  of  it.(3) 

(l)AYaterston  v.  Getchell,  5  Grecril.  435. 

(2)  Taunton  v.  Caswell,  4  Pick.  275. 

(3;  Baireli  v.  Pntchatd,  2  Pick.  512      .\vei  v.  Barileit.  9  Pick.  156. 


Sect.   IV.]  CONDITIONAL    S.\LE.  21 

12.  A  purchased  from  B  a  cow,  on  condition  that  if  A  should 
pay  for  her,  she  should  become  his  property,  otherwise  to  re- 
main the  property  of  B.  A  took  possession  of  the  cow,  used 
her  three  or  four  years,  and  paid  a  part  of  the  price,  which  B 
accepted  ;  but  he  neglected  to  pay  the  residue,  thouirh  request- 
ed. The  son  of  B,  by  his  order,  took  possession  of  the  cow, 
and  A  brings  trespass  against  him.  Held,  the  property  had  not 
vested  in  A,  and  the  action  did  not  lie.(l) 

13.  A  agreed  to  pay  for  certain  hay,  if  B  should  pronounce  it 
merchantable.  B  said  of  the  hay  that  it  was  "  a  fair  lot,  say 
merchantable — not  quite  so  good  as  I  expected — the  outside  of 
the  bundle  some  damaged  by  the  weather."  Held,  this  did  not 
bind  A  to  take  the  hay. (2) 

14.  A  sold  a  quantity  of  wines  to  C,  as  the  agent  of  B  & 
Co.,  giving  him  the  following  writing — "sold  C  20  pipes  wine 
at  $1  per  gall,  at  6  months,  payable  in  P.,  or,  if  his  principal 
prefers  cash,  3  per  cent,  discount ;  the  acceptance  to  be  perfect- 
ly satisfactory.  Principal  B  &,  Co."  Upon  the  importunity  of 
C,  the  wine  was  delivered  on  thie.  express  condition,  and  C 
agreed  that  B  &  Co.  should  comply  with  the  conditions.  Tlie 
contract  was  not  fulfilleJ.  B  &  Co.  sold  to  the  defendant  and 
became  insolvent.  C,  who  had  pledged  himself  for  the  fulfilment 
of  tlie  contract  by  B  &  Co.,  paid  the  sum  due  A,  and  took  a  bill 
of  sale.  C  brings  replevin  for  the  property.  Held,  the  sale  was 
conditional,  and  B  &.  Co.  gained  no  title  till  payment  and  de- 
livery, or  till  satisfactory  paper  was  given. (3j 

15.  A  sold  to  B  a  quantity  of  coffee,  "provided  it  is  not  sold 
in  New  York."  Held,  the  sale  was  absolute,  unless  the  coffee 
was  then  sold.     The  proviso  did  not  apply  to  future  sales.(4) 

16.  A,  residing  at  Naples,  sent  an  order  to  B  at  Birmingham 
to  forward  to  him  certain  goods,  upon  insurance  being  effected 
on  them,  with  three  months'  credit  from  the  time  of  arrival.  B 
marked  A's  initials  upon  the  goods,  sent  them  by  canal  to  Liver- 
pool, and  e.Tected   insurance   upon   them  as   the  property  of  A. 

(1)  West  V.  Bolton,  4  Verm.  558. 

(2)  Crane  v.  Roberts,  5  Greenl.  419. 

(3)  Copland  v.  Rosqiicl,4  Wash.  C.  C.  5S8. 

(4)  Blvdeaburg  v.  Welsh,  Bald.  331. 


22  GEXIiRAL    rHIiVCIPLES    OK    SALE,    &C.  [Chap.    I. 

At  Liverpool,  the  agent  of  A  delivered  the  goods  to  the  owner 
of  a  ship  bound  to  Naples.  By  the  negligence  of  the  ship-own- 
er they  were  damaged,  and  A  brings  an  action  against  him  upon 
this  ground.  Held,  the  action  was  rightly  brought.  The  goods 
became  the  property  of  A.  when  sent  from  Birmingham,  and 
their  arrival  at  Naples  was  not  a  condition  precedent  of  pay- 
ment. If  it  were,  the  insurance  would  have  been  useless.  The 
true  construction  of  the  order  was,  that  if  the  goods  should 
reach  Naples,  A  should  have  three  months'  credit  from  their  ar- 
rival. If  not,  for  a  reasonable  time  after  their  arrival  at  Naples 
became  impossible.  Unless  the  goods  belonged  to  A,  no  suit 
would  lie  upon  the  policy.  B  could  not  maintain  one,  because 
they  were  represented  as  A's  property.  Nor  was  A's  agent 
alone  entitled  to  bring  an  action,  because  the  goods  were  re- 
ceipted for  to  him  by  the  defendant;  for  this  created  a  liability 
in  law  to  the  principal  :  although  some  difficulty  might  have 
arisen  on  this  point,  had  the  agent  himself  set  up  an  adverse  in- 
terest. (1) 

17.  Agreement  as  follows.  "  I  have  this  day  sold  on  arrival, 
one  hundred  tons  barilla  in  your  Bon  Fim  from  Teneriffe." 
By  accident,  and  without  fraud  or  fault  of  the  vendor,  the  ship 
arrived  without  the  barilla.  Held  this  was  a  conditional  con- 
tract, and  the  condition  on  which  it  was  to  bind  had  failed.  If 
the  vendor  hud  been  guilty  of  any  fraud,  an  action  on  the  case 
would  lie  against  him. (2) 

18.  Agreement  to  deliver  certain  goods  upon  their  arrival,  to 
be  delivered  with  all  convenient  speed,  but  not  to  exceed  a  giv- 
en day.  Held,  their  arrival  in  time  for  delivery  on  that  day  was 
a  condition  precedent  of  the  contract;  and  that  if  they  did  not 
thus  arrive,  without  any  fault  on  the  part  of  the  vendor,  the  con- 
tract was  void,  and  no  action  would  lie  against  him  for  non-dc- 
livery.(3) 

19.  It  is  not  clear  that  a  mortgage  of  chattels  is  a  contract  of 
sale  under  the  Statute  of  Frauds.  This  contemplates  a  sale, 
where  the  vendor  is  to   receive  payment  of  the   price,  and  the 

(I)  Fragano  v.  Loiii;,  4  B.  At  C.-213. 
("1)  Hawcs  V.  Humble,  2  Cainji.  327,  ii. 
(3)  Alewvn  V.  Prvur,  Ryan  &.  M.  406. 


Sect.    IV.]  CONDITIONAL    SALE.  23 

vendee  to  take   the   goods,  neither   of  which  occurs   in  case  of 
mortgage.(l) 

20.  A  mortgage  of  chattels  may  be  valid,  without  any  schedule, 
or  enumeration  and  valuation  of  the  goods,  if  they  are  sufficient- 
ly indicated,  and  there  is  no  fraud. (2) 


Section  V. — effect  of  a  sale  by  one  not  owning  the 

I'ROPERTY    SOLD. 

1.  By  the  English  law,  a  vendee  of  personal  property  may 
under  certain  circumstances  gain  a  better  title  to  it,  than  the 
party  had  of  whom  he  bought.  This  is  where  sales  are  made 
publicly  and  with  notoriety,  or  in  market  overt.  Such  sales  are 
good,  not  only  between  the  parties,  but  as  to  all  other  persons. 
A  sale  in  market  overt  must  take  place  on  a  day  and  at  a  place 
assigned  or  set  apart  by  charter  or  prescription  for  the  market, 
in  the  day  time,  between  sunrise  and  sunset,  and  be  made  wholly 
in  the  market,  and  not  merely  begin  or  end  there.  These  precise 
requisitions,  however,  are  of  little  comparative  importance  in 
American  law,  because  the  whole  doctrine  of  sale  in  market  overt 
is  in  the  United  States  obsolete,  and  the  universal  maxim  of  our 
jurisprudence  is  "nemo  in  alium  potest  transferre  plus  juris 
quam  ipse  habet."  The  owner  of  property  can  be  divested  of 
it,  only  by  his  own  consent  or  by  operation  of  law, (3)  unless,  per- 
haps, where  one  is  allowed  by  the  owner  to  have  possession  of 
the  thing  and  of  the  indicia  documents  relating  to  it. (4) 

2.  The  following,  though  more  curious  than  practically  use- 
ful, may  be  given  as  some  of  the  points  settled  in  England  in 
relation  to  sales  in  market  overt. 

3.  Sale  in  market  overt  is  no  plea  to  an  action  of  trover,  be- 
cause it  amounts  but  to  the  general  issue. (5) 


(1)  Gleason  v.  Drew,  9  Greenl.  82. 

(2)  Brinley  V.  Spring,  7  Gieenl.  241. 

(3)  Per  Savage,  Ch.  J.,  Williams  v.  Merle,  11  Wen.l.  81. 

(4)  Chit,  on  Contr.  304. 

(5)  Johnes  v.  Williams,  Cro.  Jac.  165. 


24  GENERAL    PRINCIPLES    OF    SALE,    &C.  [Chap.    I. 

4.  In  pleading  a  sale  in  market  overt,  it  need  not  be  alleged 
that  the  market  was  in  any  certain  person,  or  that  it  was  not 
held  on  a  Sunday — the  prescription  being,  to  hold  a  fair  there 
every  year  iipnn  the  'idfh  of  August;  or  that  any  toll  was  paid, 
or  that  the  seller  had  a  property  in  the  goods. (1) 

5.  A  fair  holden  upon  the  Sunday  is  well  enough,  although 
by  27  Hen.  6,  c.  5,  there  is  a  penalty  inflicted  upon  one  who 
sells  on  that  day  ;    but  it  makes  a  sale  not  void. (2) 

6.  Stolen  goods  were  sold  in  the  public  market-place  in  Bos- 
ton. Held,  that  no  title  passed  to  the  vendee,  notwithstanding 
an  ancient  ordinance  of  1633,  which  provided  that  "  henceforth 
a  market  shall  be  kept  at  Boston  on  the  fifth  day  of  the  week. "(3) 

7.  So  in  Maryland,  a  purchase  at  a  public  market  established 
by  law,  has  been  held  not  to  be  in  market  overt.{A) 

8.  Goods  were  sent  from  Huntingdon  to  Pittsburgh  by  a  wag- 
oner, to  be  delivered  to  A.  The  wagoner  sold  them  openly  in 
the  streets  of  Pittsburgh  to  B.  Held,  the  vendee  gained  no  ti- 
tle to  the  goods.  The  law  of  Pennsylvania  does  not  recognize 
any  market  overt.  The  owner  of  the  goods  was  guilty  of  no 
imprudence,  and  held  out  no  false  colors.  The  goods  were  sent 
in  the  usual  and  notorious  course  of  business  from  Huntingdon 
to  Pittsburgh,  and  the  wagoner  could  not  be  presumed  to  own 
or  have  authority  to  sell  them.  The  owner  might  maintain  tres- 
pass or  trover  against  any  one  who  should  take  them  from  the 
carrier,  although  the  latter  might  also  maintain  an  action.  He 
had  a  bare  authority  to  carry,  but  no  interest.*(5) 

9.  Where  the  bailee  of  a  chattel  sells  it,  the  owner  may  re- 
cover the  property  or  its  value  from  any  one  in  possession  of  it, 
even  a  bona  fide  purchaser  without  notice.  And  the  principle 
applies  to  a  broker,  though  he  purchase  in  the  regular  course  of 


(1)  Comyns  V.  Bayer,  Cro.  Eliz.  485. 

(2)  lb. 

(3)  Dame  v.  Baldwin,  8  jMass.  318.     Townc  v.  Ciillin?,  14  Mas?.  500. 

(4)  Browning  v.  MagiM,  2  Har.  &  J.  308. 

(5)  Lecky  v.  M'Derinott,  8  S.  &  R.  500. 


♦  See  further  as  to  market  overt,  Ho?ack  v.  Weaver,  1   Yeales,  478.     Hardy  v. 
Mctzgar,  2.  347.     Eastoii  v.  Worlliington,  5  S.  &  R.  130. 


Sect,    v.]     EFFECT    OF    A    SALE    BY    ONE    NOT    OWNINO,   &C.  25 

business,  and  dispose  of  the  property  according  to  ihe  instruc- 
tions of  his  principal,  before  suit  brought.  The  rule  oi'  caveat 
emptor  is  to  govern,  and  the  vendee's  claim  is  upon  the  implied 
warranty  of  title  by  his  vendor.(l) 

10.  The  plaintiff  delivered  a  horse  to  A  to  be  sold  for  the 
plaintiff's  benefit.  A  sold  to  B  in  payment  of  a  debt  of  his 
own,  and  B  to  the  defendant.  Held,  the  plaintifT  still  retained  his 
title  to  the  horse,  and  might  maintain  replevin  against  the  de- 
fendant.(2) 

11.  The  master  of  a  tow-boat  took  by  mistake  four  barrels  of 
pot  ashes  from  the  warehouse  of  the  plaintiff,  who  occupied  the 
same  building  witli  the  owners  of  the  boat  at  Albany.  Upon 
arriving  in  New  York,  the  master  discovered  his  mistake,  and 
delivered  the  property  to  the  clerk  of  his  employer's  agent,  who 
undertook  to  carry  it  to  the  inspector  and  advertise  it,  which 
was  accordingly  done.  The  clerk  sold  the  ashes  (o  the  defend- 
ant, a  produce  broker,  who  purchased  on  account  of  one  A,  for 
a  fair  price,  and  received  the  inspector's  certificate.  The  de- 
fendant took  the  ashes  from  the  inspector's  office  and  shipped 
them  to  the  order  of  his  principal.  Held,  after  demand,  the 
plaintifT  might  maintain  trover  against  the  defendant. (3) 

12.  The  principle,  that  a  sale,  though  made  for  valuable  con- 
sideration, and  without  notice  of  any  adverse  claim,  passes  to 
the  vendee  only  the  title  of  the  vendor ;  and  that  the  true  own- 
er may  evict  him,  is  true  of  a  sale  tnade  abroad,  unless  there  is 
some  local  law  to  the  contrary.  So  where  goods  are  captured, 
and  sold  by  order  of  a  prize  court  established  by  a  belligerent 
in  a  neutral  country ;  the  property  does  not  pass,  as  against  the 
true  owner.  And  a  sale  made  by  a  captor,  even  of  the  goods  of 
an  enemy,  does  not  divest  the  owner's  title,  unless  there  has 
beena  judgment  of  condemnation  by  a  Court,  of  competent  ju- 
risdiction, of  the  sovereign  of  the  captor.  The  maxim  of  the 
civil  law,  "  nemo  plus  juris  in  alium  transferre  potest,  quam  ipse 


(1)  Roland  v.  Gundy,  5  Ohio,  232.     Williams  v.  Merle,  11  Wend.  80. 

(2)  Parsons  v.  Webb,  8  Greenl.  38. 
(8)  William?  v.  Merle,  11  Wend.  80. 

4 


2C  GENERAL    PRINCIPLES    OF    SALE,    &.C.  [Chap.   1, 

habet,"    makes  apart  of  the   law   of  France,  of  Scotland,  and 
probably  most  of  the  countries  of  Europe.(l) 

13,  Where  goods  are  wrecked  or  abandoned,  and  sold  agree- 
ably to  the  municipal  regulation  of  the  country  ;  the  property 
passes,  as  against  all  prior  titles.  The  same  rule  applies,  al- 
though before  abandonment  the  property  was  in  possession  of 
pirates,  or  of  captors  before  adjudication.  The  regularity  and 
competency  of  such  sale  are  presumed,  where  no  doubt  is  rais- 
ed as  to  its  fairness  and  official  character,  because  it  is  a  sum- 
mary proceeding.  Foreign  courts  are  bound  not  only  in  comi- 
ty, but  by  the  principles  of  public  utility,  to  recognize  a  title 
thus  acquired  ;  for  otherwise  there  would  be  no  security  in  any 
derivative  titles.  Hence,  where  a  ship  was  brought  into  a  Span- 
ish port,  by  Frenchmen,  in  a  feeble  and  dismantled  condition, 
after  two  months  abandoned,  several  months  afterwards  cast 
ashore,  and  sold  at  auction  by  the  public  agent  and  commissa- 
ry of  the  port ;  held,  the  sale  passed  a  good  title  as  against  all 
the  world.  This  is  not  a  case  governed  by  the  law  of  nations, 
like  the  questions  of  prize  or  capture. (2) 


Section  VI. — construction  of  sales. 

1.  With  regard  to  the  construction  of  contracts  of  sale,  one 
of  the  most  important  distinctions  is  that  between  executed  and 
executory  agreements. 

2.  It  is  a  well  settled  distinction  between  executory  and  exe- 
cuted contracts,  that  the  former  convey  a  cJiose  in  action,  the 
latter  a  cliose  in  possession.  The  usual  and  decisive  test  is,  at 
whose  risk  is  the  subject  of  the  contract.  A  mere  contract  to 
sell,  without  actual  or  symbolical  delivery,  does  not  pass  a  title, 
but  a  subsequent  sale  and  delivery  has  precedence  of  such  con- 
tract, and  passes  the  property.     The  Statute  of  Frauds  proceeds 


(1)  Wheelwright  v.  De  Peyslcr,  1  Jolin.  471. 

(2)  Grant  v.  M'hachlin,  4  John.  31. 


Sect.    VI.]  COiNSTRUCTION    OX^    S.\LES.  27 

upon  the   above    distinction,  in   requiring   written   evidence   of 
a  mere  contract  to  sell.(l) 

3.  The  word  sold,  at  the  commencement  of  a  writing  signed 
by  a  vendor,  means,  in  law,  contracted  to  scll.{2) 

4.  A  written  agreement  stated,  that  the  p\xiint'iff  bought  of  one 
A  a  quantity  of  timber  lying  in  Washington  and  Saratoga  coun- 
ties in  the  state  of  New  York ;  the  plaintiff  to  pay  for  it  at  the 
measurement  in  New  York,  upon  delivery  and  inspection,  and  at 
a  fair  market  price,  when  delivered.  A  to  deliver  the  timber  by 
a  certain  day ;  the  amount  to  be  indorsed  upon  certain  notes  held 
by  the  plaintiff,  and  the  surplus,  if  any,  paid  to  A.  Held,  this  was 
an  executory/,  not  an  executed  agreement.  The  timber  remained 
at  A's  risk.  He  was  to  carry  it  to  New  York ;  there  was  to  be 
no  delivery  previous  to  the  inspection,  and  A  might  refuse  to 
deliver  till  the  indorsement  should  be  made  upon  the  notes  as 
agreed.  If  the  value  of  the  timber  exceeded  the  amount^of  the 
notes,  A  might  demand  payment  of  the  surplus  before  delivering 
the  timber.  Hence,  the  plaintiff  cannot  maintain  trover  against 
the  defendant,  a  servant  of  A,  who  carried  the  timber  to  New 
York,  and  refused  to  deliver  it  to  the  plaintiff. ,3) 

5.  A  writing  was  given  in  this  form.  "  H.  &  A,  of  P.  Dec. 
13,  1813.  I  sold  to  the  above  gentlemen  39  bales  of  upland 
cotton  at  40  cents;  60  days  for  approved  security.  S.  P.  Bill 
to  be  made  out  in  the  names  of  H  &  A,  W  &  B,  A  T."  Held, 
this  was  not  a  sale,  but  a  mere  contract  to  sell. (4) 

6.  An  agreement  to  sell  an  unfinished  chattel,  to  be  delivered 
infuturo,  is  in  its  nature  executory,  and  does  not  pass  a  title  to 
the  property.  Tiius  in  July  1828,  A,  in  consideration  of  a  prior 
debt,  agreed  to  sell  B  certain  hides  and  skins  tlien  in  process 
of  tanning  in  A's  vats,  but  capable  of  removal,  to  be  delivered 
on  or  before  November  12,  some  of  them  at  fixed  prices,  the 
rest  at  the  market  price,  the  value  to  be  passed  to  the  credit  of 
A,  in  settlement  of  his  account.     Held,  no  immediate  title  pass- 

(1)  Roberts  v.  BeaUy,  2  Peniis.  67.  M'DonulJ  v.  llewcll,  15  Join*.  361.  Per 
Spencer,  J.     Penninian  v.  Hartshorn,  13  Mass    87. 

(2)  Russell  V.  NicoU,  3  AVeii(l.  112. 
(S)  M'Donald  V.  Hewctt,  15  John.  349. 
(4)  Peiiiiinian  v.  Hartshorn,  13  Mass.  87 


28  GENERAT.    PRINCIPLF.S    OF    SALE,  &C.  [Chap.  I. 

ed  to  B,  but  the  property  still  remained  liable  to  be  taken  on  ex- 
ecution against  A,  though  the  transaction  was  an  open  one,  and 
though  a  long-established  usage  was  shown  for  curriers  in  the 
city  to  purchase  leather  from  tanners  in  the  country,  while  in 
process  of  manufacture,  to  be  delivered  when  tanned,  and  to 
make  advances  under  these  circumstances.  If  the  vendor  were 
understood  to  retain  possession  as  servant  of  the  vendee,  the  la- 
bor and  materials  to  be  added  by  him  being  the  subject  of  a 
separate  compensation,  no  purchaser  of  a  finished  article  would 
have  a  secure  title.  The  value  of  the  article  in  its  unfinished  state 
is  not  to  be  regarded  as  the  basis  of  the  contract.  In  the  pre- 
sent case,  the  bargain  had  reference  to  the  price  of  the  pro- 
perty, when  ready  for  the  market.  Where  an  article  is  manu- 
factured to  order,  delivery  only  can  pass  a  title,  because  at  the 
time  of  giving  the  order,  there  is  no  property  in  any  thing  to 
pass,  and  the  accidental  existence  of  a  part  at  the  time  surely 
would  not  give  a  specific  right  to  the  whole.  The  case  is  un- 
like that  of  grotcing  gi-ain.  This  depends  upon  the  process  of 
nature;  but  the  manufacture  of  hides  is  a  process  of  art,  which 
changes  the  quality  of  the  article.  The  vendee  would  not  be 
bound  to  accept  them  if  injured,  or  manufactured  in  an  unwork- 
manlike manner;  which  shows  that  the  title  had  not  vested  in 
him.(l)     (See  Sect.  I.  44.) 

7.  In  the  month  of  November,  A  agreed  to  build  a  ship  for 
B,  to  find  and  perform  all  the  carpenter  work,  and  to  launch  and 
deliver  her  in  September  following;  B  to  pay  a  certain  sum  per 
ton  in  thirty  days  from  delivery.  By  another  instrument  of 
even  date,  A  leased  his  ship-yard  to  B,  and  covenanted,  when 
the  keel  should  be  laid,  to  give  a  bill  of  sale  of  the  vessel,  before 
B  should  be  bound  to  make  any  advances.  On  the  same  day,  B 
and  C  entered  into  an  agreement,  that  the  ship  should  be  for 
their  joint  account  and  risk,  and  that  each  should  bear  his  pro- 
portion of  profit  and  loss.  On  the  12th  of  IVIay  ensuing,  in 
consideration  of  advances  made  by  B,  and  for  his  security,  A 
conveyed  to  him  all  the  lumber  and  materials  in  the  yard,  and 
covenanted  to  apply  them  in  building   the   vessel.     This  instru- 

(1)  Prit'heU  V.  Jones,  4  Rawle,  360. 


Sect.  VI.]         CONSTRUCIION  OF  SALES.  29 

ment  was  made  before  the  laying  of  the  keel.  May  20,  the  keel 
being  laid,  and  the  stem  and  stern-posts  raised.  A,  for  the  pur- 
pose of  securing  performance  of  the  first  contract,  conveyed  to 
B  "  the  keel  and  other  parts  of  an  unfinished  ship,  being  the 
same  which  was  agreed  to  be  built  by  the  instrument  of  Novem- 
ber ;"  at  the  same  time  giving  a  lease  of  the  yard,  and  making 
a  symbolical  delivery,  and  a  condition  being  added,  that  if  B 
fail  in  his  contract,  the  conveyance  should  be  void,  and  also  a 
covenant  by  B  that  A  shall  have  the  right  of  free  entry  to  the 
ship-yard,  for  the  purpose  of  finishing  and  launching  the  vessel. 
The  property  being  attached  by  creditors  of  A,  B  and  C  bring 
trespass  against  the  officer.  Held,  by  the  contract  of  Novem- 
ber, though  designed  to  give  B  a  lien  upon  the  materials,  he 
would  acquire  no  title  till  delivery  of  the  vessel  in  Boston  ;  that 
probably  the  agreement  of  May  12  was  equally  inoperative,  not- 
withstanding B's  prior  advances,  for  it  did  not  appear  that  the 
ship  had  been  then  commenced,  or  the  materials  to  be  used  in 
the  work  separated  from  the  rest,  without  which  separation^none 
would  pass.  But,  by  the  contract  of  May  20,  B  acquired  a  valid 
title  to  the  property.  This  was  a  lawful  contract,  because  it 
enabled  A,  without  funds,  to  build  the  ship  with  those  of  B  ; 
and  the  means  to  effect  the  object  were  lawful,  being  neither 
imperfect  in  form,  nor  fraudulent  against  creditors.  The  max- 
im applied,  "  proprietas  totius  navis  carinas  causam  sequitur." 
As  the  facts  showed,  that  the  transfer  was  made  merely  as  secu- 
rity for  past  and  future  advances;  A's  continuing  to  work  upon 
the  ship  without  any  new  agreement,  was  no  proof  of  a  covert 
bargain.  The  parlies  considered  the  original  agreement  as  still 
in  force,  but  the  property  was  changed  for  the  purpose  of  security. 
It  was  immaterial,  whether  the  transaction  constituted  a  mort- 
gage or  conditional  sale,  or  both.  The  jury  found  that  there 
was  no  fraud;  nor  was  the  want  of  any  public  declaration  of 
the  transaction,  evidence  of  fraud.  It  was  further  held,  that  C 
was  rightly  joined  in  the  suit  as  plaintiff.  In  relation  to  A,  B 
was  to  be  regarded  as  sole  owner  ;  but,  before  registrati-on,  the 
title  to  a  ship  may  pass  by  parol  agreement ;    and  if  B,  under  a 


30  GENERAL    PRINCIPLES    OF    SALE,    &C.  [Chap.  I. 

conveyance  from  A,  had  claimed  the  whole  title,  Equity  would 
have  compelled  him  to  assign  a  portion  to  C.(l) 

8.  A  agreed  with  B  at  Newburyport,  to  sell  him  A's  "  fare  of 
fish"  at  "  125.  3c/.  per  quintal,  and  nine  cents  per  quintal  for 
carrying  to  Boston,  wharfage  to  be  paid  by  B,  and  all  other  ac- 
cidental charges  by  A  ;  the  fish  to  be  at  B's  risk,  when  on  board 
the  vessel."  Held,  this  contract  did  not  pass  a  title  to  B  ;  that 
before  delivery  the  fish  might  be  attached  by  creditors  of  A,  and 
B  could  not  maintain  trover  against  a  subsequent  purchaser 
from  A.  The  contract  was  to  be  construed  as  entire  for  a  sale 
and  deliver!/  at  Boston,  not  a  sale  at  Newburyport  and  an  inde- 
pendent agreement  to  carry  to  Boston.  If  the  latter  were  the 
true  construction,  B  would  not  have  agreed  to  pay  wharfage, 
nor  that  the  fish  should  be  at  his  risk  on  board  the  vessel.  A 
would  have  the  right  to  retain  the  property  in  Boston,  till  pay- 
ment. B's  assuming  the  risk,  was  a  mere  agreement  to  in- 
sure. (3) 

9.  A  agreed  with  B,  that  B  should  take  his  sheep  and  depas- 
ture them  for  a  certain  time,  and  if  at  the  end  of  that  time  he 
paid  a  certain  sum,  have  the  sheep  for  his  property.  Held,  this 
was  no  sale,  and  that  A  might  before  the  day  make  a  valid  sale 
to  C.(3) 

10.  A  gave  B  a  bill  of  sale  of  all  the  lumber  and  materials  in 
a  ship-yard  for  the  purpose  of  building  and  finishing  a  ship,  but 
without  any  schedule  or  specification,  and  not  followed  by  any 
separation  of  a  particular  portion  from  the  whole  mass.  By  a 
former  agreement,  A  had  contracted  to  build  a  ship  for  B.  By 
a  subsequent  instrument,  A  conveys  to  B  the  keel  and  other 
parts  of  an  unfinished  ship,  then  lying  on  the  stocks.  Held, 
that  the  second  instrument  passed  no  property  to  B  ;  but  by  the 
third,  he  acquired  a  title  to  all  the  timber  which  had  been  ac. 
tu ally  selected  and  fitted  for  the  ship,  provided  it  could  be  iden- 
tified.(4) 

(1)  Glover  v.  Austin,  6  Pick.  205>. 

(2)  Shaw  V.  Nadd,8  Pi.:l<.  9. 

(3)  Long  on  Sales,  109. 

(4)  Glover  V.  Ilunncwcll,  6  Picii.  Z'i'Z. 


Sect.    VI.]  CONSTRUCTION    OF    SALES.  31 

11.  A  contracts  with  B  to  build  a  ship  for  him.  B,  immedi- 
ately afterwards,  agrees  with  C  that  he  shall  own  one  quarter  of 
her.  Held,  notwithstanding  a  subsequent  instrument,  which 
transferred  to  B  the  materials  in  A's  ship-yard,  to  be  used  in 
building  the  ship  ;  C  had  no  title  to  any  timber  which  was  not 
actually  put  into  the  vessel. (1) 

12.  Agreement  between  A  and  B  for  the  joint  purchase  of 
twenty  thousand  mats,  afterwards  to  be  stored  by  B.  May  6,  a 
new  contract  was  made  between  them,  substantially  as  follows 
— "  A  bought  of  B  twenty  thousand  Russia  mats  at  ten  cents 
each — $2000.  A  to  pay  $4  per  month  storage  from  this  date, 
and  interest  on  the  mats  till  paid  for.  A  not  to  pay  for  the 
mats  more  than  the  amount  indorsed  on  this  bill,  till  the  same 
are  sold."  Upon  this  contract,  of  the  same  date,  was  an  in- 
dorsement of  the  receipt  of  $1,104,50  in  cash  and  notes.  May 
8,  B  procured  the  mats,  not  paid  for,  to  be  attached  for  one  of 
his  creditors.  May  13,  A  was  summoned  as  trustee  of  B. 
June  5,  A  brings  an  action. of  trespass  against  the  officer,  and 
recovers  judgment  for  the  value  of  the  property,  which  was  paid 
to  A.  Immediately  afterwards,  A  was  again  summoned  as  trus- 
tee of  B  in  the  present  suit.  Held,  the  sale  of  May  6  passed  a 
title  to  A  ;  that  the  attachment,  being  tortious,  had  no  effect 
upon  the  sale ;  and  that  A  was  chargeable  in  the  first  suit  for 
the  residue  of  the  mats  not  paid  for,  and  consequently  was  not 
chargeable  in  the  present  action.  That  the  mats  were  not  to 
be  paid  for  till  sold  by  the  trustee,  made  no  difference  in  the 
case.  It  was  "  debitum  in  preesenti ;"  and  there  was  a  limita- 
tion merely  of  the  time  of  payment.  Nor  was  it  material  that 
the  trustee  had  merely  a  constructive  possession,  the  sale  being 
complete,  and  the  title  vested.  This  fact  might  be  important,  if 
the  trustee  were  attempted  to  be  charged  as  holding  'properly  in 
trust,  (as  in  Andrews  v.  Ludlow,  5  Pick.  28) ;  but  the  only 
around  for  charging  him  here  must  be  as  a  debtor,  for  theprice^ 
The  attachment  could  not  operate  to  rescind  the  sale. (2)     , 

13.  A  sold  to  B  a  boat,  B  paying  part  of  the  price,  gifving  his 


(1)  Glover  v.  Hurinewell,  6  Pick.  222. 

(2)  Stone  v.  Hodges,  14  Pick.  81. 


32  GENERAL    PRINCIPLES    OF    SALE,    &.C.  [Chap.    T. 

note  for  the  balance,  and  taking  a  bill  of  sale.  Being  unable 
to  pay  the  note,  B  gave  up  the  bill  of  sale  to  A,  who  agreed, 
upon  payment  of  the  balance  due,  to  re-convey  or  restore  the 
boat,  and,  having  no  convenient  place  for  keeping  it,  left  it  with 
B,  with  authority  to  sell  it,  subject  to  the  lien  of  A.  Held,  the 
transaction  was  either  a  re-sale  of  the  property  and  payment  of 
the  note,  with  the  privilege  reserved  to  B  of  re-purchasing  ;  or 
a  mortgage  to  secure  the  balance  due  ;  and  that  A  might  main- 
tain replevin  against  an  officer,  who  attached  the  boat  as  the 
property  of  B.  Under  the  circumstances,  A  could  no  longer 
have  sustained  a  suit  upon  the  note,  although  not  given  up  to  B 
And,  on  the  other  hand,  if  B  had  converted  the  boat  to  his  own 
use,  A  might  bring  trover  against  him.  The  facts  showed  a 
sufficient  consideration,  not  executory  but  executed,  for  a  re- 
sale.(l) 

14.  The  defendant  contracted  with  one  A  to  sell  him  two 
hundred  hogsheads  of  sugar,  which  contract  A  assigned  to  the 
plaintiff.  The  plaintiff  inquired  of  the  defendant  whether  he 
had  in  his  possession  this  number  of  hogsheads,  belonging  to  A, 
which  he  would  deliver  to  the  plaintiff,  and  the  defendant  re- 
plied in  the  affirmative.  Payment  was  made,  according  to  the 
contract.  Held,  an  action  of  trover  did  not  lie,  because  the 
transaction  was  a  mere  contract,  not  an  actual  sale,  and  the  fif- 
ty hogsheads  were  not  in  esse. (2) 

15.  The  defendant  agreed  with  one  A  to  sell  him  at  so  much 
per  ton  a  pile  of  slate,  to  be  sold,  and  paid  for,  as  parcels  of  it 
should  from  time  to  time  be  taken  away.  After  paying  for 
fourteen  tons,  A  sold  this  quantity  to  the  plaintiff,  giving  him 
an  order  therefor  upon  the  defendant.  A  then  made  a  settle- 
ment with  the  defendant  before  notice  of  the  transfer,  giving 
his  note  for  the  balance  due  upon  the  contract,  and  taking  a 
memorandum,  that  when  paid,  the  rest  of  the  slate  should  be  de- 
livered. Afterwards  the  plaintiff  presented  the  order  to  the 
defendant,  but  he  refused  to  accept  it.  Held,  the  plaintiff  by  the 
above  transactions  had  gained  no  title  to  the  fourteen  tons,  and 

(1)  Glcason  v.  Drew,  9  Giconl.  79. 

(2)  Austen  v.  Craven,  4  Taiin.  644. 


Sect.    VI.]  CONSTRUCTION    OF    SA1.F.S.  33 

could  not  maintain  trover.  Tlie  contract  between  A  and  the 
defendant  was  merely  executory,  and  remained  so  at  the  time  of 
the  transfer  to  the  plainlilT.  It  only  entitled  A  to  claim  that 
the  stipulated  quantity  of  slate  should  be  weighed  and  separat- 
ed for  his  use,  but,  until  this  was  done,  gave  him  no  title. 
Hence  A  transferred  to  the  plaintiff  a  mere  chose  in  action,  by 
which  transfer  the  defendant  could  not  be  prejudiced  without 
receiving  notice.  The  defendant  and  A  had  the  right  of  re- 
scinding their  bargain,  although  A  thereby  committed  a  fraud 
upon  the  plaintitF.  The  defendant  was  entitled  to  retain  the 
slate  as  security  for  the  note  given  him  by  A.  The  defendant 
telied  upon  the  property,  and  the  plaintiff  upon  the  personal  se- 
curity (1) 

16.  A  and  B  owning  a  brig  and  her  cargo,  which  were  bound 
ypon  a  voyage,  C  advanced  to  them  $600,  and  took  back  an  in- 
strument acknowledging  receipt  of  the  money,  "  being  the 
amount  of  his  (C's)  adventure  on  board  said  brig,  to  be  receiv- 
ed from  the  proceeds  of  said  brig's  cargo,  whenever  her  voyage 
may  end,"  and  concluding  thus,  "we  promise  to  pay  C  or  or- 
der his  proportion  of  the  proceeds  of  the  cargo,  according  to 
said  investment  of  $600,  reckoning  the  cargo  at  a  fair  cash 
price  and  the  necessary  charges,  including  duties  and  insurance. 
In  case  of  loss,  the  above  amount  to  draw  a  proportion  of  the  in- 
surance recovered."  Invoices  and  bills  of  lading  were  made 
in  the  names  of  A  and  B.  During  the  absence  of  the  vessel, 
A  and  B  indorsed  the  bills  of  lading,  and  assigned  the  cargo, 
bona  fide,  to  E  and  F,  who  had  signed  and  indorsed  notes  for  A 
and  B,  by  way  of  indemnity  for  such  liabilities,  the  balance  of 
the  proceeds  to  be  paid  to  the  order  of  the  assignors.  After  the 
assignment,  and  before  notice  of  the  agreement  with  C,  the  as- 
signees accepted  an  order  drawn  by  the  assignor  for  an  amount 
equal  to  the  whole  surplus.  E  and  F  having  received  and  sold 
the  cargo,  C  brings  assumpsit  for  money  had  and  received 
against  them.  Held,  by  the  contract  with  C  he  did  not  become 
a  part-owner  of  the  cargo,  but  acquired  only  a  personal  claim 
against  A  and  B  ;   and  therefore   the  action  could  not  be  sus- 

(1)   Young  V.  Austin,  6  Pi  k.  280. 


34  GENERAL    PRINCIPLES    OF    SALE,    &-C.  [Cliap.    I. 

tained.  The  property  might  have  been  attached  by  creditors  of 
A  and  B,  and  therefore  was  assignable  to  one  ignorant  of  C's 
interest.  (1) 

17.  Contract,  in  New  York,  for  the  sale  of  five  hundred  bales 
of  cotton,  to  be  delivered  upon  its  arrival  at  New  York  from 
New  Orleans,  any  time  between  the  date  of  the  contract  and 
the  first  of  June  following.  Payment  in  cash  on  delivery.  The 
cotton  to  be  weighed,  and  two  per  cent,  tare  allowed.  Held, 
this  was  a  mere  executory  contract,  which  did  not  pass  the  pro- 
perty, and  that  the  proposed  vendor  was  not  bound  to  deliver 
the  cotton,  unless  it  arrived  in  New  York  at  the  time  appoint- 
ed. The  specification  as  to  time,  merely  fixed  the  period  to 
which  the  liability  of  each  party  was  to  be  limited;  but  did  not 
constitute  an  agreement  to  deliver  the  cotton  at  all  events. 
The  cotton  was  to  be  brought  to  New  York,  weighed  there, 
and  paid  for  by  the  vendee,  after  making  the  stipulated  deduc- 
tion. The  vendor  might  retain  it  for  the  purpose  of  weighing, 
and  until  it  should  be  paid  for.  Had  the  property  been  lost  be- 
tween New  Orleans  and  New  York,  or  at  the  latter  place  before 
weighing,  the  vendor  must  have  borne  the  loss.  Upon  these 
grounds,  held,  assumpsit  for  non-delivery 'of  the  cotton  did  not 
lie  against  the  vendor. (2) 

18.  A,  the  consignee  of  20,000  mats,  sold  them  to  himself 
and  the  plaintiff  at  ten  cents  each,  upon  a  credit  of  six  months. 
Both  parlies  to  be  equally  interested  ;  A  to  store  the  mats  six 
months  gratis ;  the  plaintiiTto  pay  one  half  the  expense  of  put- 
ting them  in  A's  loft ;  and,  as  fast  as  they  were  re-sold,  the  pro- 
ceeds to  be  paid  to  A,  who  was  to  pay  interest  for  the  six 
months.  During  this  time,  some  of  the  mats  were  sold,  and,  at 
the  expiration  of  it.  A,  to  prevent  an  attachment  by  his  credi- 
tors, gave  a  bill  of  sale  of  the  whole  to  the  plaintiff,  who  was 
ignorant  of  the  fraudulent  intent,  with  the  agreement  that  the 
plaintiff  should  pay  him  storage  afterwards,  and  interest  till  pay- 
ment. The  plaintiff  was  not  to  pay  more  than  -^1,104,50,  which 
was  paid  in  cash  and  notes,  till  he  should  have  opportunity  to 
sell,  when  he  was  to  pay  cash  for  those  sold  ;   in  the  mean  time, 

(1)  Gallop  V.  Newman,  7  Pick.  282. 

(2)  Russell  V.  Nicoll,  3  Wend.  112. 


Sect.    VI.]  CONSTRUOTION    OF    SALES.  35 

A  to  keep  possession.  The  mats  having  been  attached  by  a 
creditor  of  A,  tlic  plaintiff  brings  trespass  against  the  officer. 
Held,  by  the  first  sale,  the  plaintiff  became  a  tenant  in  common 
of  the  property  ;  that  A's  possession  was  his,  and  the  second 
sale  valid  without  a  new  delivery  ;  that  trespass  might  be 
maintained,  A's  lien,  if  he  had  any,  not  being  an  attachable  in- 
terest, and  no  defence  to  this  suit.  By  parting  with  the  posses- 
sion, A  lost  his  lien,  and  he  had  no  right  of  action  against  the  offi- 
cer, because  the  attachment  was  made  with  his  procurement.(l) 

19.  Agreement  in  writing  between  A  and  B,  that  A  should 
carry  on  the  farm  of  B,  and  receive  one  half  the  produce  in 
payment  for  his  services.  B  to  furnish  all  necessary  seeds,  and 
A  to  pay  for  one  half  of  the  seeds  sown  or  return  one  half  of 
them  after  harvest,  at  his  option.  B  to  supply  A  with  grain  till 
he  could  harvest  the  crops,  and  to  receive  the  same  quantity  at 
harvest,  or  the  value  in  cash.  B  accordingly  furnished  A  with 
rye  and  oats,  a  part  of  which  was  sown,  and  the  rest  used  by  A  ; 
also  with  a  quantity  of  hay.  A  raised  oats  and  sold  them.  B 
brings  indeh.  assump.  against  A,  the  contract  still  remaining  in 
force.  Held,  he  could  not  recover  for  the  rye  and  the  first  par- 
cel of  oats,  because  these  were  included  in  the  contract,  and  A 
had  the  right  to  pay  for  them  in  kind.  But  he  might  recov- 
er for  the  hay,  which  w-as  not  included  in  the  contract,  and  for 
one  half  the  last  parcel  of  oats,  because  by  the  sale,  A  had  dis- 
abled himself  from  delivering  them  in  kind. (2) 

20.  Agreement,  made  in  August,  to  deliver  certain  property 
between  October  I,  and  December  1,  to  be  paid  for  on  delivery 
at  a  certain  place,  with  liberty  to  the  vendee  to  have  the  quanti- 
ty increased  on  reasonable  notice.  Held,  the  vendee  was  bound 
to  give  such  notice  before  October  1,  and  to  prove  a  readiness 
to  pay  for  the  increased  quantity. (3) 

21.  A  and  B,  living  in  Maine,  made  a  written  agreement,  by 
which  A  was  to  deliver,  and  B  to  receive,  at  Philadelphia,  from 
one  thousand  to  three  thousand  bushels  of  potatoes.  Held,  A 
might  elect  to  deliver  any  quantity  between  the   two  quantities 

(1)  Kitlrcdge  v.  Sumner,  II  Pick.  50. 

(2)  Shearer  v.  Jewett,  14  Pick.  -Z32. 

(3)  Topping  r.  Root,  5  Cow.  404. 


36  GENERAL    PRINCIPLES    OF    SALE,    &C.  [Chap.    I. 

named,  and  was  not  bound  to  make  an  election  till  arrival  of 
the  potatoes  at  the  place  of  delivery,  although  requested  by  B 
to  do  so  after  the  shipment.(l) 

22.  The  plaintiff,  having  a  quantity  of  apples,  agreed  in  writ- 
iniJ'  to  sell  the  defendant  his  cider,  at  so  much  per  hogshead,  to 
be  delivered  at  T,  at  a  future  time  ;  also  to  lend  the  defendant  his 
empty  casks  for  the  cider,  to  be  manufactured  on  the  plaintiff's 
premises,  and  paid  for  before  removal.  The  plaintiff  pounded 
the  apples  and  delivered  the  juice  to  a  servant  of  the  defendant, 
who  proceeded  to  manufacture  the  cider.  Before  the  process 
was  completed,  the  cider  and  casks,  some  of  which  belonged  to 
the  plaintiff,  were  seized  by  the  officers  of  excise,  for  being  in 
an  unentered  place,  and  condemned  in  the  Exchequer  as  the 
property  of  the  defendant.  In  Devonshire,  where  the  parties 
lived,  cider  was  proved  to  mean  the  juice  of  the  apples  as  ex- 
pressed therefrom.  The  plaintiff  sues  for  the  price  of  the  cider 
and  casks.  Held,  the  true  construction  of  the  agreement  was 
for  the  sale  of  the  juice,  not  of  manufactured  cider,  and  the 
delivery  to  the  servant  of  the  defendant  vested  a  property  in  the 
latter.  The  defendant  was  bound  by  the  agreement  to  enter  th^ 
premises  of  the  plaintiff.  As  he  neglected  to  do  this,  the  plain- 
tiff was  necessarily  prevented,  and  therefore  excused,  from  de- 
livering cider  at  T,  and  he  might  recover  either  as  for  goods 
sold  and  delivered,  or  bargained  and  sold. (2) 

23.  A,  being  the  owner  of  certain  land,  sold  to  B  by  deed 
all  the  timber  trees  standing  thereon,  allowing  him  two  years 
for  the  purpose  of  taking  them  away.  Held,  this  was  a  sale  of 
only  so  much  timber  as  B  might  take  from  the  land  within  the 
two  years,  and  that  a  subsequent  entry  by  him  was  a  trespass. 
It  was  further  held,  that  the  fact  of  a  sale  of  the  land  to  C  near- 
ly four  years  after  the  expiration  of  the  period  above  specified, 
reserving  the  right  of  B,  gave  no  new  operation  to  the  original 
contract,  nor  constituted  any  new  license  to  B  to  enter  upon 
ihe  land. (3) 

24.  A   conveyed   to  B  "  four  clapboard   machines   and   two 

( 1 )  Small  V.  Q.iincy,  4  Grccnl .  497. 

(2)  Sludrly  V.  Saunders,  8  D.  &.  R.  403. 

(3)  Pease  v.  Gibson,  6  Giccni.  81.     Howard  v.  Lincoln,  I  Sliepl.  \Z%- 


Sect.  VI.]         CONSTRUCTION  OF  SALES.  37 

shingle  machines,"  then  being  at  a  certain  place  in  L  ;  "  and 
likewise  the  patent  right  for  L  and  J,  during  the  term  of  the  pa- 
tent, which  is  fourteen  years  from  September  3,  1813."  Held, 
this  was  a  conveyance  of  the  patent  right  to  use  both  the  clap- 
board and  shingle  machines  ;  that  A,  having  no  patent  to  the 
former,  was  bound  to  refund  such  part  of  the  consideration  as 
B  had  paid  therefor  ;  and  that,  inasmuch  as  no  interest  had  pass- 
ed in  this  respect,  there  was  nothing  for  B  to  return,  in  order  to 
maintain  an  action  for  the  above  amount. (1) 

25.  A  contracted  with  B  in  writing  as  follows — "  bought  the 
brig  T,  with  stores,  boats,  and  forty  tons  of  iron  kintlage  (a 
species  of  ballast)  for  ,£1000."  Afterwards,  a  bill  of  sale  was 
given,  as  follows — "A,  in  consideration  of  =£1500,  sells  the  brig 
T  with  all  her  stores,  tackle,  apparel,  &c."  Held,  the  latter 
writing  was  decisive  as  to  the  contract  between  the  parties  ;  that 
the  kintlage  was  not  included  in  the  sale,  and  that  B  could 
maintain  no  action  for  non-delivery  of  it.(2) 

26.  A  sold  to  B  all  the  hemp  that  might  be  shipped  in  certain 
vessels  at  Riga,  not  exceeding  three  hundred  tons,  by  C  "the 
agent  of  the  concern."  C  shipped  in  these  vessels  only  seven- 
ty-one tons  on  A's  account;  but  more  than  three  hundred  tons 
on  account  of  other  persons.  Held,  the  contract  must  be  lim- 
ited to  such  hemp  as  was  shipped  by  C,  as  the  agent  of  A  ;  and 
the  latter  was  obligated  to  deliver  no  more  than  the  seventy-one 
tons.  It  could  not  be  supposed  that  A  meant  to  sell  property 
which  did  not  belong  to  him,  but  to  others. (3) 

27.  Ao-reement  to  deliver  from  seven  hundred  to  one  thou- 
sand barrels  of  meal,  at  so  much  per  barrel.  Seven  hundred 
were  delivered,  and  then  three  hundred  more  were  tendered. 
Held,  the  vendor  might  elect  to  deliver  any  number  of  barrels 
from  seven  hundred  to  one  thousand,  and  that  B  was  bound  to 
pay  for  those  tendered. (4) 

28.  A  aorreed  to  purchase  of  B  "  about  three  hundred  quar- 
ters, more  or   less,"  of  foreign    rye,  shipped    in   the   ship   C  at 

(1)  Judkins  v.  Earl,  7  Greenl.  9. 

(2)  Lano  v.  Neale,  2  Star.  105. 

(3)  Hayward  v.  Scougall,  2  Camp.  56. 

(4)  Disborough  v.  Neilsop,  3  John.  Cas.  81. 


38  GENERAL    PRINCIPLES    OF    SALE,    &:-C.  [Chap.    I. 

Hamburgh,  at  a  certain  price,  subject  to  the  safe  arrival  of  the 
C  with  the  goods,  and  being  unsold  at  Hamburgh.  The  C  ar- 
rived, bringing  three  hundred  and  fifty  quarters  of  rye  ;  but  B 
refused  to  deliver  any  par't  of  it,  unless  A  would  take  the  whole: 
A  thereupon  abandoned  the  contract,  and  brought  an  action  to 
recover  the  money  paid  for  the  three  hundred  quarters.  Held, 
the  agreement  did  not  contemplate  an  excess  of  fifty  quarters 
over  the  three  hundred  expressly  mentioned  ;  that  if  the  con- 
struction of  the  contract  was  doubtful,  the  burden  of  proof  was 
on  the  defendant,  and  the  defence  not  made  out.  The  agree- 
ment might  mean  all  the  rye  that  could  be  brought  by  the  ship 
C,  or  all  that  the  correspondent  of  B  could  send  by  her,  there 
being  other  goods  on  board  ;  or  the  remainder  of  the  cargo,  af- 
ter sale  of  a  part.  Whether  the  terms  "  about"  and  "  more  or 
less"  could  be  explained  by  the  testimony  of  merchants,  qu.(l) 

29.  The  plaintiff"  agreed  to  buy  from  the  defendant,  and  the 
defendant  to  sell  the  plaintiff",  all  the  7iopht7iath^i  the  defendant 
might  make  for  two  years,  sai/  from  one  tliousand  to  twelve  hun- 
dred gallons  per  month.  Upon  demurrer  to  the  defendant's 
pleas,  a  question  arose  as  to  the  sufficiency  of  the  declaration, 
which  alleged  no  construction  by  usage  of  the  word  soi/,  used 
in  this  contract.  Held,  in  the  absence  of  any  proof  of  fraud, 
the  declaration  did  not  allege  a  sufficient  breach  of  the  con- 
tract ;  the  true  meaning  of  which  was,  that  the  quantity  of 
naphtha  made  by  the  defendant  would  probably  amount  to  one 
thousand  or  twelve  hundred,  and  that  the  plaintiff  should  have 
all  that  he  might  make. (2) 

30.  Agreement,  to  have  a  boat  ready  for  the  spring  trade  on 
the  first  of  March  ensuing;  otherwise,  to  pay  ten  dollars  dam- 
ages for  every  day  after  that  time,  till  the  boat  should  be  ready. 
Held,  this  was  a  covenant  that  the  boat  should  be  ready  on  the 
first  of  March  for  the  spring  trade,  and  that  the  promisee  should 
recover  damages  for  a  breach,  though  it  could  not  have  been  then 
used  for  that  purpose. (3) 

31.  Contract  for  the  sale  of  tobacco  on  board  a  vessel  bound 


(1)  Cross  V.  Eglin,  2  Barn.  &  Aclol.  106. 

(2)  Gwillim  v.  Danicll,  2  Cromp.  IM.  &  R.  61. 

(3)  Young  V.  White,  b  Walls,  460. 


Sect.  VI.]         CONSTRUCTION  OF  SALES.  30 

from  A  to  B.  "  One  fifth  of  the  price  to  be  paid  in  cash  on  a 
certain  day  ;  for  the  other  four  fifths  the  vendor  to  look  to  his 
correspondent  abroad,  the  consignee  of  the  goods."  There  was 
a  further  understanding,  that  interest  should  be  allowed,  as  if  the 
sale  had  been  at  two  and  three  months  from  final  delivery.  The 
vendee  to  have  the  benefit  of  the  vendor's  policy  in  case  of  average. 
One  fifih  of  the  price  was  paid  in  cash.  The  property  was  sold 
at  B,  at  a  loss  of  two  fifths  of  the  computed  value.  Held,  the 
vendee  was  responsible  to  the  vendor  for  such  loss.  Any  other" 
construction  would  make  the  vendor  liable  to  loss,  but  give  him 
no  chance  of  profit.  The  foreign  arrangement  was  a  mode  of 
payment,  provided  merely  for  the  accommodation  of  the  vendee. 
The  consignee  not  being  able  to  make  up  the  price,  the  vendee 
was  bound  to  do  it.(l) 

32.  Agreement  by  A  to  furnish  straw  to  B,  to  be  delivered  at 
the  premises  of  the  latter  ;  three  loads  per  fortnight,  for  a  spe- 
cified time.  B  agreed  to  pay  a  certain  sum  per  load  for  each 
load  so  delivered  on  his  premises  during  the  time.  The  straw 
having  been  sent  for  some  time  according  to  agreement,  B  refused 
to  pay  for  the  last  load,  claiming  the  right  of  always  keeping  one 
load  unpaid  for.  Held,  by  the  terms  of  the  agreement,  each 
load  was  to  be  'paid  for  on  delivery  ;  and  therefore  A  was  not 
bound  to  furnish  any  more  loads,  after  B's  refusal  and  claim  as 
above-mentioned.  Perhaps  it  might  have  been  otherwise  had  B 
merely  neglected  to  pay  according  to  agreement. (2) 

33.  Sale  of  merchandize  by  written  agreement,  at  so  much  per 
load,  to  be  taken  by  dock  account,  and  paid  for  in  cash,  allow- 
ing two  and  one  half  per  cent,  discount,  within  fourteen  days 
from  date ;  to  be  taken  on  board,  and  the  duty  deducted.  The 
duty  to  be  paid  by  the  vendee.  Held,  the  discount  was  to  be 
made  on  the  sum  paid  the  vendor  only,  without  the  duty. (3) 

34.  Goods  shipped  from  abroad  to  a  merchant  in  England, 
are  to  be  paid  for  on  a  demand  of  freight,  by  net  weight  at  the 
king's  landing-scales,  not  by  the  weight  specified  in  the  bill  of 
lading,   unless  there  is  an   agreement  to  the   contrary.     And 

(1)  Hoffman  v.  Heyraan,  2  D.  &  R.  74. 

(2)  Withers  v.  Reynolds,  2  Barn  &  Ad.  882. 

(3)  Smith  V.  Blandy,  Ryan  &  M.  260. 


46  fiKNERAr.    PRIM*  IPI.F.H    OK    SALT,    «.V  C.  [Cfinp.   1. 

where  a  vendee  paid  freight  according  to  tlie  wciirlit  in  the  mar- 
gin of  the  bill  of  lading,  which  was  signed  by  the  captain  with 
tlie  reservation  "  weights  unknown  ;"  held,  the  mistake  was  of 
fact,  not  of  law,  and  therefore  the  account  was  not  concluded, 
and  that  the  excess  paid  niighl  be  recovered  back.  \\'ii<>/tt  was 
held  to  mean  7iet  tPei^ht.  The  jury  found  a  usage  in  i'uvor  of 
the  above  construction.(  I ) 

35.  The  defendant  agreed  to  purchase  from  the  plaintilT  a 
large  quantity  of  Campeachy  logwood  at  so  much  per  ton,  to  be 
of  real  merchantable  (|ua!ily.  Such  part  thereof  as  impartial 
judges  should  pronounce  otherwise,  to  be  rejected.  Si.Klcon 
tons  out  of  three  hundred  proved  to  be  of  an  inferior  quality  to 
that  mentioned  in  the  agreement.  In  a  suit  brought  by  the 
vendor  against  the  vendee  for  non-performance  of  tlic  acrree-' 
ment,  held,  the  latter  was  bound  to  take  such  part  of  the  lotr- 
wood  as  corresj)ondod  with  the  contract,  at  the  stipulated  price  ; 
and  that  such  price  was  the  measure  of  damages,  and  not  the 
amount  of  difference  between  the  price  and  what  the  logwood 
would  have  brought,  when  the  true  quuitiiy  of  Campeachy  was 
ascertained. ("2) 

36.  Agreement  to  deliver  a  quantity  of  iron,  made  at  A,  for 
a  sound  price.  Iron  was  delivered  which  was  made  at  A,  and 
which  tlie  vendor  believed  good,  but  on  trial  it  proved  positive- 
ly bad.  '  Held,  this  was  a  fulfilment  of  the  contract. (3) 

37.  The  correct  construction  of  a  contract  is  often  determin- 
ed by  facts  or  declarations  not  contained  in  the  agreement  it- 
self, as,  for  instance,  by  a  certain  notice  or  usage. 

38.  At  a  repository  for  horses,  certain  rules  were  posted  up, 
regulating  private  sales.  Held,  such  regulations  were  binding 
upon  parties  contracting  tliere,  and  having  notice  of  them. (4) 

39.  A  ordered  from  B,  .with  whom  he  had  previously  dealt, 
more  of  a  certain  article,  to  be  sent  by  a  particular  coach.  At 
the  office  of  this  coach  a  notice  was  posted  up,  that  the  proprie- 
tors would  be  liable  only  to  the  amount  of  J^5,  unless  the  goods 

(1)  Geraldcs  V.  Donison,  Holi,  346. 

(2)  Gniliain  v.  Jackson,  14  E.  498. 

(3)  Kirk  V.  Nice,  2  Watts,  367. 

(4)  Bywatei-  v.  Richardson,  2  Nev.  &  M.in.  748.     1  Ad.  &  El.  508. 


Sect.  VI,]  I  ONSTRUCTION  OF  SALES.  41 

were  insured.  The  goods  ordered  by  A  exceeded  this  amount, 
were  sent  by  this  coach,  and  not  insured  ;  but  there  had  been 
no  insurance  on  goods  sent  in  previous  cases.  The  goods  be- 
ing lost,  held,  B  might  maintain  an  action  for  the  price. (1) 

40.  Though  a  tisoQc  of  (rode  cannot  be  set  up  in  contraven- 
tion of  an  express  contract,  yet,  to  explain  an  ambiguity,  the 
general  understanding  of  a  particular  trade  may  be  shown. ("2) 

41.  Certain  mill-logs  were  s<jld,  for  so  much  per  thousand, 
according  to  the  quantity  of  lumber  they  should  be  estimated  to 
make.  A  table  or  scale  of  estimation  was  so  generally  used,  thai 
the  jury  found  the  parties  referred  to  it,  in  order  to  compute  the 
quantity  of  lumber.  Held,  they  were  bound  by  such  table, 
though  somewhat  erroneous. (3) 

42.  Agreement  to  deliver  Salina  salt  in  barrels.  Held,  the 
barrels  must  be  such  as  were  prescribed  by  the  statute. (4) 

43.  A  promise  to  pay  a  sum  of  money  in  wares  of  a  certain 
trade,  means  articles  which  are  entire,  and  of  a  kind  and  fash- 
ion in  common  use  ;  not  antiquated  and  unsaleable. (5) 

(1)  Colhay  T.  Tule,  3  Camp.  129. 

(2)  Powell  V.  Horton,  3  Scott,  110. 

(5)  H«ald  V.  Cooper,  8  Grconl.  Si.'. 
(4)  Clark  v.  Pinney,  7  Cow.  681. 

(6)  Dennett  v.  Short.  7  Grecnl.  loO. 


chapti:k  II 


PARTIES  TO  THE  CONTRACT  OF  SALE. 

Section  1. — married  women. 

1.  General  principle  as  to  the  capacity  of  contracting. 

2.  Married  women — general  disability. 

3.  Liabiliti/  of  the  husband  for  goods  sold  to  the  wife. 
11.  Liability  of  the  wife. 

Section  II. — infants. 

1.    Their  liability  for  necessaries. 

4.  Liability  of  the  father. 

7.   Contract  of  an  infant  not  void,  but  voidable. 

Section  III. — idiots,  lunatics,  &c. 

1.  Idiots,  lunatics,  ^c. 

2.  Duress. 

3.  Alien  enemies. 

Section  IV. — agents,  factors,  and   brokers. 
1.  General  rules  ;  the  principal  is  the  real  party. 


Sect.    I.]  MARRIED    WOMEN.  43 

4.  General  and  special  agents. 

5.  Agency  cannot  be  delegated. 

6.  Agent,  how  appointed;  express  and  implied   authority:  ex- 

tent of  authority. 

20.  Admissions,  Sfc.  of  agent. 

21.  Revocatior\  oj  an  agent's  authority. 

22.  Principal,  whether  liable,  if  credit  were  given  to  the  agent ; 

agent's  liability  ;  public  agents  ;  ship-owner  and  master. 
33.   Suit  by  an  agent  against  the  principal,  as  purchaser. 

35.  Principal  responsible  for  fraud  of  agent. 

36.  Sales,  iSfc.  by  brokers. 

41.  Boughl  and  sold  notes. 
45.   Salt  by  wharfingers,  Sfc. 

4(>.  Proceeds  oJ  property  sold  by  agent,  belong  to  principal. 

42.  Sale  by  trustees,  executors,  Sfc 

53.    i'ndir  an  order  of  Court,  or  legal  process. 
63.  Sales  by  or  to  partners. 


Section  I. — married  women. 

1.  All  persons  are  competent  to  buy  or  sell,  unless  laboring 
under  some  special  disability,  which  incapacitates  them  for  mak- 
incr  any  valid  contract. 

2.  A  married  woman  or  feme  covert  is  incapable,  for  the  most 
part,  of  buying  or  selling  personal  property.  The  law  vests  all 
her  chattels  in  her  husband,  and  of  course  she  cannot  sell  that 
to  which  she  has  herself  no  title ;  nor,  except  under  special  cir- 
cumstances, can  she  become  a  purchaser,  so  as  to  charge  either 
herself  or  her  husband  with  the  price  of  the  thing  sold. 

3.  A  husband  is,  under  some  circumstances,  liable  for  neces- 
saries furnished  to  his  wife.  But,  in  order  to  charge  him,  the 
seller  must  prove  either  liis  express  or  implied  authority  for,  or 
assent  to  the  i«ale,  or  that  the  property  was  necessary  and  con- 
venient, and  suitable   to  hi?  actual   condition   and    fortune,  and 


41  PARTIES    TU    SALES.  [Chap    II. 

llint  the  wife  is  unprovided  fur,  and  has  no  adequate  means  of 
support.  The  circumstance  of  her  liriiig  with  \nm  is  strong 
evidence  of  his  a.ssentlo  lier  contracts,  and  has  been  hA^  jjiima 
facie  evidence  that  the  goods  were  ordered  by  liis  authority,  un- 
less ihey  were  luxuries,  or  unsuitable  to  her  station.  Other  acts 
of  the  husband  may  justify  the  same  inference. 

4.  The  husband  may  prohibit  any  particular  individual  from 
trusting  his  wife;  and  has,  in  general,  the  right  of  judging  what 
is  necessary  for  her  use  ;  but  he  cannot  prohibit  all  persons 
from  supplying  her  with  necessaries.  And,  it  seems,  even  his 
express  dissent  will  not  exempt  him  from  liability,  where-  the 
thing  sold  was  absolutely  necessary  for  her  comfort-  But  if  she 
has  the  means  of  support,  though  derived  from  her  own  re- 
sources, he  is  not  liable.  So,  if  it  is  clearly  proved,  that  the 
credit  was  given  to  her.  Her  improper  and  lewd  conduct,  while 
he  continues  to  live  with  her,  will  not  c.\empt  him  from  lh«r  lia- 
bility to  support  her.  And  though  they  arc  separated,  yet  if  he 
has  the  control  of  the  goods  purchased  by  her,  and  fails  to  re- 
turn them,  he  is  liable.  If  he  turn  her  away,  or  without  reason 
refuse  to  receive  her,  or  treat  her  in  such  a  way  as  justifies  her 
leaving  him,  he  is  liable  for  necessaries,  even  to  one  whom  he 
has  expressly  prohibited  from  trusting  her.  But  if  ^he  leave 
him  for  any  thing  short  of  actual  violence,  or  a  reasonable  fear 
of  it,  or  a  reasonable  cause  for  refusing  to  cohabit  with  him,  he 
is  not  liable.  It  is  sufficient  to  charge  a  man,  that  he  represents 
a  woman  as  his  wife,  cohabits  with  her,  or  permits  her  to  as- 
sume his  name.(l) 

5.  If  a  wife  purchase  goods  without  the  knowledge  of  the 
husband,  and  he,  knowing  of  it,  afterwards  allow  her  to  use  or 
keep  them,  he  is  liable  for  the  price.  If,  on  being  applied  to 
for  payment,  he  disavows  any  participation  in  her  business,  and 
denies  that  the  goods  were  purchased  in  his  behalf,  the   vendor 

(1)  3  Barn,  it  Cr.  631.  63.  7  C.  &  P.  756.  3  Esp.2o5.  3  C.  &,  P.  16.  3  B.  &  R. 
532.  5  Bing.  552,  3  Camp.  22.  4  Nev.  &  M.  589.  I  Camp.  120.  Ld.  Ray.  1006 
Sid.  109.  2  New  R.  157.  1  Salk.  118.  2  Star.  86.  6  Bing.  28.  5  Taun.  356- 
ISalk.  119.  6  Mod.  171.  3  Bing.  127.  oC.  &P.200.  1  Y.  &  J.  501.  4  Burr 
2177.  5  Bing.  28.  Str.  1214.  S  Taun. 421.  2  Esp.  637.  1  Camp.  245.  4  Camp' 
Hi.     9  B   &  C.  167. 


Sect.    I.]  MARRIED    WOMEN.  45 

may  consider  the  agreement  as  rescinded,  and  retake  or  sue  for 
the  property.(l) 

6.  Where  a  wife  elopes  with  an  adulterer,  the  husband  is  no 
lontrer  liable  for  any  thing  furnished  her  ;  because  tlie  circum- 
stances are  sutficient  to  put  all  persons  on  their  jruard.  Other- 
wise, where,  after  acts  of  adultery  by  the  wife,  the  husband 
leaves  her  in  his  house  with  children  bearing  his  name,  although 
^he  afterwards  continue  her  criminal  conduct;  unless  such  con- 
duct be  brought  home  to  the  knowledge  of  the  creditor.(2) 

7.  A  man  is  liable  for  necessaries  supplied  to  a  woman  whom 
he  has  married  and  held  out  to  the  world  as  his  wife,  noiuith- 
standing  his  previous  marriage  with  another  woman,  unless  he 
can  clearly  prove  notice  to  the  creditor  of  such  marriage. (3) 

8.  Where  tiie  husband  has  himself  brought  to  his  house,  and 
held  criminal  intercourse  with,  a  woman  not  his  wife;  treated 
the  wife  with  great  cruelty  and  turned  her  away,  and  afterwards 
the  wife  is  guilty  of  adultery,  but  offers  to  return  to  her  hus- 
band, who  refuses  to  receive  her  ;  he  is  not  liable  for  goods  sup- 
plied to  the  wife.  But  if,  after  her  criminal  conduct,  he  receive 
her  back,  and  again  turn  her  away,  he  is  liable  for  necessaries 
furnished  her. (4) 

9.  If  a  wife  elope,  but  not  with  an  adulterer,  and  afterwards 
request  the  husband  to  receive  her  back,  which  he  refuses  to 
do  ;   it  seems  he  is  liable  for  her  subsequent  support.(5) 

10.  Where  husband  and  wife  live  apart,  upon  an  agreement 
for  separate  maintenance,  he  is  not  liable  for  necessaries  fur- 
nished her,  though  nhe  creditor  were  ignorant  of  such  agree- 
ment, provided  it  was  matter  of  general  notoriety  in  the  neighbor- 
hood. Otherwise,  if  the  wife  took  up  the  goods  immediately 
after  leaving  the  husband.  The  separate  maintenance  need  not 
be  secured  by  deed,  in  order  to  discharge  the  husband  ;  but  it 
must  be  proportionate  to  his  means,  and  shown  to  be  so  by  other 
proof  than  merely  the  wife's  assent.     If  the   separate   mainte- 

(1)  Mackinlt-y  v.  M'Gre;^or,  3  Wliarl.  3G9. 

(2)  Manby  V.  Scott,  1  Sid.  109.  Morris  v.  Martin,  S;r.  647,  6  B.  &  C.  200.  2 
C.  &  P.  507.    3  M.  5c  R.  121.     8  Wend.  544.     11  Wend.  33.     IB.  6i.  P.  226. 

(3)  1  Camp.  246. 

(4)  6T.  R.603.     4  Esp.  41. 

(i)3E»p.  256.     geeSir.  875.  1214,  n.  1.     1 1  John.  251.  i:,  :93 


46  I'.ARTIES    10    SAELS.  [Cliap.   II. 

nance  is  secured  through  a  trustee,  and  the  husband  fails  to  ful- 
fil his  contract,  the  trustee  may  maintain  indtb.  «S5«mp.  against 
hinj  for  necessaries  furnished  the  wife,  though  the  agreement  is 
under  seal.(I) 

11.  A  wife  is  not  rendered  liable  upon  her  contracts,  by  an 
allowance  of  alimony  made  to  her  in  a  suit  in  the  Ecclesiastical 
Court  between  licr  and  the  husband  ;(2)  nor  by  living  apart  from 
him  under  a  contract  for  separate  maintenance.  This  la^t  point 
seems  to  have  been  finally  settled  as  above  stated, (3)  after  some 
previous  decisions  to  the  contrary(4).  But  a  creditor,  in  such 
case,  may  have  relief  in  I](|uity.(,'S)  Divorce  a  mensa  does  not 
make  her  liable.*     Divorce  a  vinculo  does.(C) 

12.  Where  the  husband  has  permanently  left  the  realm,  by 
abjuration  or  banishment  for  life  ;  or,  it  seems,  where  he  has 
been  transported,  even  if  he  remain  abroad  beyond  the  time  as- 
signed to  him  ;  the  wife  is  liable.  So,  where  the  husband  is 
by  any  means,  for  the  time,  rivilitcr  mortuus,  or  the  marriage 
contract  is  suspended  or  dissolved  And  it  seems,  though  the 
authorities  upon  the  subject  are  somewhat  contradictory,  that  it 
makes  no  difference  whether  the  husband  is  an  alien  or  a  native, 
but  the  question  turns  entirely  upon  the  consideration,  whether 
the  absence  is  intended  to  be  temporary  or  permanent.  If  the 
husband  is  an  alien  enemy,  the  wife  is  liable,  because  he  cannot 
lawfully  be  in  the  country. (7) 

(1)  1  LJ.  Ravin.  444.     4  Camp.  70.    2  New  R.  148.    8  John.  27. 

(2)  5T.R.679. 

(3)  8T.R.  545. 

(4)  2  Kent.  159. 

(5)  Loner,  20. 

(6)3B.  &C.291.    3Br.  &B.  92.     2  B.  &  C.  547. 

(7)  1  Bos.  &;  P.  338.  2  W.  Bl.  1197.  4  Esp.  27.  2  B.  &  P.  232.  2  M.  &  W. 
64.  1  Aik.  174.  15  JMass.  31.  6  Pick.  89.  4  IVrCord,  148.  2  M.  &  W.  64.  6 
C.  &  P.  419.  9  Bing.  292.  7  Bin^.  762.  Salk.  116.  646.  1  B.  &  P.  357.  2.  226. 
2  Esp.  554.  587.  2  N.  R.  380,  1.  80.  3  Camp.  123.  1  Ld.  Ray.  147.  2  M.  &  W.  64. 
3B.  &C.  291.    2B.  &C.547.     Gow.  10. 

*  Otherwise  in  Massachusetts,    8  Pick.  461. 


Sect.    II.]  INFANTS.  '^^ 


Section  II. — infants. 

1.  Infants  constitute  another  class  of  persons,  whom  the  law 
holds  to  be  incapable  of  buying  and  selling,  as  well  as  entering 
into  other  contracts.  To  this  disability,  however,  there  are 
some  exceptions.  Thus  an  infant  may  legally  purchase  and 
bind  himself  to  pay  for  necessaries  ;  that  is,  for  the  food,  cloth- 
ing, medical  attendance,  instruction,  &^c.,  which  are  suitable  to 
his  condition.  So  also  for  necessaries  furnished  to  his  family. 
A  sinqlc  bill,  promising  to  pay  the  precise  sum  due  for  necessa- 
ries, is  binding  ;  but  not  a  penal  bond,  negotiable  instrument,  or 
account  stated.  But  notwithstanding  these  securities,  an  infant 
still  remains  liable  to  pay  a  reasonable  sum  for  necessaries.  If, 
after  coming  of  age,  he  promise  to  pay  a  negotiable  instrument 
given  during  infancy  for  necessaries,  it  seems,  he  is  bound,  pro- 
vided he  does  it  voluntarily  and  whh  full  notice  of  his  rights. 
But  mere  part-pmjmcnt  after  coming  of  age  will   not   bind  him 

for  the  residue.*(l) 

2.  What  articles  the  law  will  adjudge  to  be  necessaries  for  an 
infant,  depends  upon  his  real,  and  not  his  ostensible  rank  and 
fortune.  The  law  requires  the  party  who  trusts,  to  make  due 
inquiry.  A  captain  in  the  army,  under  age,  is  bound  to  pay 
for  a  livery  supplied  to  his  servant ,  but  not  for  cockades  fur- 
nished his  soldiers.  A  lieutenant  in  the  navy  is  not  bound  for 
a  chronometer.  But  an  infant  member  of  a  volunteer  corps  is 
liable' to   pay  for  regimentals.     An   infant  is  not  bound   to  pay 

(l)  Co  Lit  172  a.  Bull.  N.  p.  155.  9  WenJ.  238.  S.r.l68.  8  E.  330.  1  Lev. 
86.  7  Car.  &  P.  52.  10  John.  53.  I  T.  R.  40.  4C.&P.104.  1  Camp.  552.  3 
M.&S.477.  6Ycrg.20.  Cro.  Eliz.  533.  13  P.ck.  1.  4  Esp.  188.  3  B.  &  Aid. 
902.     17  Wend.  419.     2  E.sp.  628.  5.  102. 

*  Where  the  plaintiff  sold  the  defendant  good,  wh.le  the  latter  was  a  minor,  but  be- 
fore rece.vmg  them  she  came  of  age  ;  held,  .nasmuch  as  the  proj.erty  would  vest  m 
her.  if  at  all,  upon  delivery  to  the  carrier,  she  was  not  bound  for  the  price.  Gnffin  t. 
Langfield,  3  Camp.  254. 


48  PARTIES  TO  SALES.  [Chap.  ir. 

money  which  is  loaned  hlni  for  the  purchase  of  necessaries,  un- 
less it  be  thus  appropriated.  But,  in  Equity,  he  is  liable  for 
money  borrowed  to  pay  a  debt  for  necessaries.  An  infant  can- 
not bind  himself  to  pay  for  goods  purchased  to  trade  with,  be- 
cause the  law  regards  him  as  incapable  of  trading. 

3.  Where  an  infant  lives  with  his  father  and  is  properly  sup- 
ported by  him,  he  is  not  liable  even  for  necessaries.  So  if  he 
has  been  supplied  by  his  friends  or  by  other  tradesmen,  the 
creditor  is  bound  to  inquire  into  the  proper  quantity  as  well  as 
quality  of  the  articles  with  which  he  may  be  trusted.(l) 

4.  On  the  other  hand,  to  charge  a  father  even  for  necessaries 
supplied  to  his  child,  the  plaintiff  must  prove  a  deliberate  deser- 
tion of  the  latter  by  the  former.  Nor  is  the  father  liable,  if  he 
had  reasonable  ground  to  suppose  that  the  child  was  supplied. 
And  the  general  doctrine  is  laid  down,  that,  to  charge  the  parent, 
an  express  or  implied  authority  must  be  shown,  to  supply  the 
articles. (2) 

5.  But  any  fraud  or  misrepresentation  by  the  father  will  ren- 
der him  liable. 

6.  Sale  of  goods  to  an  infant,  on  the  false  and  fraudulent 
representation  of  his  father,  that  he  (the  father)  was  about  to 
relinquish  his  business  in  favor  of  the  son.  Held,  an  action 
might  be  maintained  against  the  father  as  for  goods  sold  and  de- 
livered. If  he  was  jointly  interested  with  the  son,  he  was  liable 
for  the  whole,  no  plea  in  abatement  having  been  filed  ;  and,  if 
the  son  had  no  interest  in  the  property,  then  the  father  appro- 
priated the  fund  from  which  creditors  expected  to  receive  pay- 
ment.(3) 

7.  It  is  to  be  understood,  that  the  contracts  of  an  infant  are 
not  in  general,  like  those  of  a  married  woman,  absolutely  void, 
but  only  voidable,  or  liable  to  be  avoided  at   the  election  of  the 

(1)8T.R.678.  Holt,  77.  5  Esp.  152.  28.  1  Salk.  386.  2  Esp.  472.  1  P.  Wms. 
554.  4  C.  &  P.  526.  3.  114.  669.  .  61  Esp.  211.  Cro.  Jac.  560.  2  W.  Bl.  1325.  4 
Watts  80.     6  Car.  &  P.  690.     Str.  1083.     Cro.  Jac.  494. 

(2)  4  Ad.  &  El.  908.  IC.&P.  1.  4Acl.  &E1.  903.  6  C.  &  P.  286.  2T.  R. 
161. 

(S)   Biddlo  V.  Levy,  1  Stark.  20. 


S^Ct.    II.]  INFANTS.  49 

infant  himself.*  Consequently  the  promise  of  an  infant  is  a 
good  consideration  for  that  of  the  other  contracting  parly  ;  be- 
cause, at  the  time  of  the  contract,  it  cannot  be  known  that  the 
former  will  fail  to  fulfil  his  agreement. 

8.  The  plaintiff,  an  infant,  having  agreed  to  take  all  the  po- 
tatoes growing  upon  certain  land  of  the  defendant,  paid  a  part 
of  the  price,  and  dug  and  carried  away  a  part  of  the  potatoes; 
but  the  defendant  would  not  permit  him  to  take  the  remainder. 
Held,  the  plaintiff  might  sustain  an  action. (1) 

9.  The  law,  however,  will  not  allow  an  infant  to  use  his  per- 
sonal privilege  as  an  instrument  of  fraud  upon  those  with  whom 
he  deals.  This  privilege  is  designed  "  for  a  shield,  not  for  a 
siDorcl"  Hence,  where  the  infant  exercises  his  right  of  disaf- 
firming a  contract,  the  other  party  may  reclaim  the  considera- 
tion which  he  has  paid. 

10.  In  December  1816,  A  and  B  commenced  business  as 
partners,  and  purchased  their  stock  in  trade  of  C,  giving  there- 
for their  joint  note  for  over  8700.  A  was  then  au  infant,  but 
represented  that  he  should  be  of  age  in  a  month  or  six  weeks. 
In  March  1817,  the  partnership  was  dissolved,  and  B  relinquish- 
ed (to  A)  all  his  interest  in  the  concern,  who  carried  it  on  alone 
for  a  short  time  in  his  own  name.  The  plaintiff  then,  in 
presence  of  B,  agreed  with  A  to  buy  of  him  all  his  stock,  at 
cost,  A  to  continue  in  the  management  of  the  business,  receiv- 
ing one  third  of  the  profits,  and  bearing  one  third  of  the  ex- 
penses ;  and  a  certain  notice  to  be  given,  before  putting  an  end 

(1)  Warwick  v.  Briice,2  Maulc  &.  S.  203. 


*  It  is  saiJ,  a  conlracl  beneficial  to  an  infant,  (as  in  iho  case  of  necessaries,)  is 
bindin".  One  that  is  prejudicial  is  void;  while  those  neither  absolutely  beneficial 
nor  prejudicial  are  voidable  ai  his  election.  Long  on  Sales  (Am.  Ed.)  13.  Of  course 
Uiese  distinctions  must  be  piedicated  upon  the  original  tendency  of  the  contract  in 
question,  or  its  general  nature,  not  upon  the  actual  results.  The  contract  must  be 
valid,  void  or  voidable  at  the  time.  It  has  been  further  remarked,  that  the  doctrine 
that  certain  acts  done  by  an  infant  arc  not  even  voidable,  has  been  only  applied  to 
cases  of  land,  which  it  is  said  arc  necessarily  required  by  law  to  be  binding,  other- 
wise the  land  would  lie  unoccupied.  There  is  no  case  in  which  it  is  holden,  that  an 
executory  contract  by  an  iul'ant,  except  for  necessaries,  is  binding.  Moses  v.  Ste. 
vens,  2  Pick.  336. 

7 


50  TAUTiES  TO  SALES.  [Chap.  II. 

to  the  contract.  During  the  negotiation,  the  plaintiff  inquired 
of  A  whether  he  was  of  age.  A  answered,  in  the  presence  of 
B,  that  he  was.  The  plaintiff  then  gave  his  note  to  A  and  B  for 
the  stock,  which  they  indorsed  to  C,  and  C  thereupon  discharg- 
ed Bfrom  the  old  note  first  above  mentioned.  In  the  autumn  of 
1817,  the  plaintiff  sold  the  stock  remaining  on  hand  to  A  at 
cost,  additions  having  been  in  the  mean  time  made  to  it.  The 
plaintiff  brings  an  action  against  A  for  the  price,  and  attaches 
the  goods.  A  having  died,  his  administrator  pleads  infancy, 
and  prevails  in  the  suit.  The  plaintiff  then  brings  the  present 
action  of  replevin  against  the  administrator,  to  recover  the 
goods  sold  by  him.  Held,  the  action  might  be  sustained.  The 
sale  in  March  1817  to  the  plaintiff  was  executed  by  A.  He  de- 
livered and  received  payment  for  the  goods,  and  the  law  would 
not  allow  him  to  retain  them,  without  restoring  the  money.  The 
sale  was  valid,  till  rescinded,  and  A  never  expressed  any  dissat- 
isfaction. The  plaintiff  delivered  the  goods,  in  the  autumn,  be- 
cause A  agreed  to  pay  for  them,  and  said  he  was  of  age.  The 
basis  of  the  contract  had  failed  through  the  fault,  if  not  the 
fraud  of  A,  and  the  property  either  never  passed,  or  had  re- 
vested in  the  plaintiff.(l) 

11.  It  is  said,  if  an  infant  give  or  sell  goods,  and  deliver  them 
with  his  hand,  he  cannot  maintain  trespass  against  the  other 
party.  But  if  the  latter  take  them  by  force  of  the  gift  or  sale, 
he  is  liable  to  an  action.  Even  in  the  former  case,  it  seems  the 
infant  may  avoid  the  sale  during  minority. (2) 


Section    III. — idiots,   lunatics,  &c. — duress — alien   ene- 


mies. 


1.  The  contracts  af  sale,  as  well  as  other  agreements,  of  idiots, 
lunatics,  and  persons  of  such  defective  understanding  as  dis- 
qualifies them  to  comprehend  the  nature  of  their  own  engage- 

(1)  Badger  v.  Phinney,  15  Mass.  359. 

(2)  Long  on  Sales  (Am.  Ed.)  14.    9  Cow.  626.  1  Mod.  137.     3  Burr.  1804. 


Sect.    III.]  IDIOTS,    LUNATICS,    &C.  51 

ments,  are  of  course  void  or  voidable  ;  and  it  seems  to  be  now 
well  settled,  though  a  contrary  doctrine  was  once  established, 
that  they  may  allege  their  own  incapacity  in  avoidance  of  their 
contracts.  Mental  incapacity  to  contract,  consists  in  an  essen- 
tial privation,  at  least  for  a  time,  of  the  reasoning  faculties, 
which  disqualifies  one  for  acting  in  the  ordinary  affairs  of  life. (1) 

2.  Duress  also  may  avoid  a  contract  of  sale  ;  and  this  con- 
sists in  actual  unlawful  imprisonment,  or  fear  of  death,  wound- 
ing or  imprisonment ;  but  not,  it  seems,  in  fear  of  a  battery  or 
loss  of  property.  And  the  threats  must  be  of  a  nature  to  terri- 
fy persons  of  ordinary  courage. (2) 

3.  It  is  the  general  rule  of  law,  that  an  alien  enemy  can  main- 
tain no  action  in  the  courts  of  the  hostile  nation ;  but  the  ex- 
ceptions and  nice  distinctions  relating  to  this  subject  have  no 
particular  connection  with  sales  of  personal  property,  and  are 
therefore  wholly  omitted  in  the  present  work. 


Section  IV. — agents,  factors  and  brokers. 

1.  Contracts  of  sale  are  often  entered  into  through  the  inter- 
vention of  agents  and  factors  *  acting  for  the  vendor  or  pur- 
chaser, or  for  both.  The  general  rule  in  relation  to  sales  and 
purchases  made  in  this  mode,  as  well  as  other  contracts,  is,  that 
the  principal  or  party  employing  an  agent  is  as  much  bound  by, 
and  entitled  to  avail  himself  of,  the  act  of  the  latter,  as  he  would 
be  if  it  were  his  own.  The  legal  maxim  is,  "  qui  facit  per  alium, 
facit  per  se."f 


(1)  2  Kent,  452. 

(2)  2  Inst.  483.    2  Kent,  453. 


*  A  factor  has  possession  as  well  as  the  disposal  of  property  belonging  to  others. 
A  broker  merely  the  latter. 

t  It  has  been  held  in  Pennsylvania,  that  although  the  above  rule,  that  the  sale  of  a 
factor  is  that  of  the  principal,  and  the  factor  a  mere  instniment,  is  subject  to  certain 
qualifications ;  there  is  nothing  in  the  acts  relating  to  auctioneers,  to  take  them  out  of 
the  general  principle.     The  auctioneer's  exclusive  right  of  selling  at  auction  has  not 


52  PARTIES  TO  SALES.  [Chap.   II. 

2.  In  case  of  sale  by  a  factor,  the  contract  is  in  fact  between 
the  owner  and  vendee,  whether  the  factor  is  a  del  credere  agent 
or  not.  Hence,  after  notice  of  the  principal's  title  to  the  pro- 
perty, the  vendee  cannot  be  charged  as  trustee  of  the  factor,  ex- 
cept for  the  amount  of  the  latter's  commissions.(I) 

3.  A  factor,  acting  under  a  del  credere  commission,  sold 
goods  in  behalf  of  the  plaintiff  to  the  defendant,  not  disclosing 
the  plaintiff's  name,  but  known  by  the  defendant  to  be  a  factor. 
The  plaintiff",  conformably  to  the  usage  between  him  and  the 
factor,  drew  upon  the  latter  for  the  amount  of  the  sale.  Before 
maturity  of  the  draft,  the  factor  stopped  payment,  and  subse- 
quently became  a  bankrupt.  At  the  time  of  his  stopping  pay- 
ment, there  was  a  balance  of  account  current  between  the  fac- 
tor and  the  defendant,  in  favor  of  the  factor,  but  at  the  time  of 
suit  brought  by  the  plaintiff  against  the  defendant  for  the  price, 
a  balance  in  favor  of  the  factor.  Held,  this  suit  might  be  main- 
tained,(2) 

4.  An  agent  is  either  general  or  special.  A  general  agent  is 
one  authorized  to  transact  all  business,  or  all  of  a  particular  kind. 
He  can  bind  his  employer  only  by  acts  within  the  scope  of  his 
employment,  and  within  the  usual  course  of  dealing  in  that  par- 

(1)  Titcomb  v,  Seaver,  4  Greenl.  542. 

(2)  Hornby  v.  Lacy,  6  M,  &  S.  166. 


this  effect ;  for,  inasmuch  as  the  owner  has  no  power  to  select  his  agent,  he  ought  to 
have  additional  authority  to  call  himself  upon  the  purchaser.  Nor  does  the  fact,  that 
auctioneers  are  under  bonds  to  the  state,  change  the  general  principle  ;  for  the  amount 
of  the  bonds  bears  a  very  small  proportion  to  the  value  of  the  properly  sold  ;  and  a 
private  factor's  giving  security  would  not  affect  the  right  of  the  principal  to  call  on  the 
purchaser.  So  the  auctioneer's  receiving  a  commission  does  not  vary  the  general  rule. 
For,  although  this  implies  the  general  right  of  collecting  from  purchasers  ;  yet,  the 
vendor  may  interpose  and  prevent  it,  and  will  thus  make  himself  liable  for  the  com- 
mission. As  the  auctioneer  is  bound  to  pay  duties,  and  receives  commissions,  he  has  the 
right  of  collecting  to  this  extent,  and  may  so  far  retain  the  money  and  forbid  payment 
to  the  principal  ;  and  probably  the  vendee  would  be  bound  to  take  notice  of  this  right- 
The  case  of  Willing  v.  Rowland,  (4  Dall.  106,  n.)  is  said  to  favor  the  contrary  doc- 
trine, that  the  owner  of  the  goods  cannot  maintain  an  action  against  the  purchaser, 
but  the  auctioneer  is  the  proper  party.  But  this  is  said  to  have  been  a  hasty  decision. 
The  case  of  Lea  v.  Yard,  (lb.)  merely  decides  that  the  bond  of  an  auctioneer  is  de- 
signed for  the  benefit  of  his  private  customers,  as  well  as  to  secure  payment  of  duties. 
Girard  v.  Taggart,  5  S.  &  R.  19, 


Sect.    IV.]  AGENTS,    FACTORS    AND    BROKERS.  53 

ticular  business.  But  no  private  order  from  the  principal,  un- 
known to  the  other  party,  will  limit  the  agent's  authority.  Nor 
will  it  depend  at  all  upon  the  question  whether  his  acts  are  ad- 
vantageous or  otherwise.  A  special  agent  is  one  appointed  to 
do  some  specific  act  or  acts,  and  in  the  doing  of  these  alone  can 
he  bind  his  employer.  A  party  dealing  with  him  is  bound  to 
inquire  into  his  authority.  But  an  agent  employed  to  effect  a 
certain  object,  has  authority  to  use  all  the  usual  and  proper 
means  for  accomplishing  it,  unless  these  are  excluded  by  express 
instructions.(l) 

5.  It  is  the  general  rule,  that  an  agent  must  execute  his  au- 
thority in  person  ;  he  cannot  delegate  it  to  another,  without  the 
principal's  consent,  unless  the  business  is  of  a  nature  which  nat- 
urally or  necessarily  requires  the  employment  of  sub-agents.(2) 

6.  No  particular  form  is  requisite  for  the  appointment  of  an 
agent  to  buy  or  sell  personal  property.  A  mere  verbal  authori- 
ty is  sufficient;  and  in  some  cases  the  power  maybe  implied 
from  other  acts  and  dealings.  Thus  if  a  man  send  his  servant 
with  the  money  to  buy  goods,  the  servant  cannot  render  him 
liable  by  purchasing  on  credit.  But  if  a  servant  who  usually 
buys  for  the  master  on  credit,  purchase  certain  articles  without 
any  order  to  do  so,  and  if  the  vendor  give  credit  to  the  master, 
he  is  liable  for  the  price,  more  especially  if  the  vendor  has  pre- 
viously dealt  with  him.  A  general  agency  cannot  be  implied 
from  a  single  recognized  dealing,  but  only  from  repeated  in- 
stances.(3) 

7.  The  plaintiff  brings  an  action  for  hay  and  oats  furnished 
the  defendant's  horses.  It  appeared,  that  the  plaintiff  had  never 
dealt  with  the  defendant,  but  always  with  his  coachman,  to 
whom  the  defendant  had  periodically  supplied  money  for  this 
object.  The  debt  was  incurred  several  years  before  commence- 
ment of  suit,  and  no  demand  made  upon  the  defendant.  Held, 
he  was  not  liable.(4) 


(1)  Paley,  139.200.  207.  9. 

(2)  Paley  175,  6,  7. 

(3)  1  Shower,  95.    10  Mod.  111.   3Keb.625.     I  Str.  506.    Peake,47.     ILd.Ray. 
224.    R.  &  M.  227.  217. 

(4)  Kendall  v.  Andrews,  Long,  220. 


54  PARTIES   TO   SALES.  [Chap.    II. 

8.  Wliere  a  master  usually  pays  cash  for  a  part  of  the  goods 
supplied  by  a  tradesman  to  his  servant,  this  is  sufficient  notice, 
that  he  considers  these  only  as  furnished  to  his  family,  and  the 
vendor  is  bound  to  ascertain  the  destination  of  the  goods  which 
he  sells.  Hence  if  he  deliver  them  without  payment  or  notice 
to  the  master,  the  latter  is  not  liable,  unless  they  come  to  his 
use.(l) 

9.  Ld.  Ellenborough  has  thus  stated  the  rule  of  law  on  this 
subject.  The  general  rule  is,  that  in  order  to  bind  one  person 
by  the  act  of  another,  the  former  must  either  antecedently  au- 
thorize or  subsequently  adopt  such  act.  If  I  authorize  a  man 
to  obtain  credit  on  my  account,  which  he  does,  I  am  liable,  un- 
less I  have  paid  him.  And  so  if,  after  the  sale,  the  money  was 
given  to  the  servant  to  pay  for  the  goods,  it  seems  the  master  is 
liable,  in  case  the  servant  does  not  pay  for  ihem,  because  he  has 
authorized  the  servant  to  purchase  on  credit. (2) 

10.  The  plaintiff  delivered  a  quantity  of  hay  and  corn  at  the 
stables  of  the  defendant,  but  had  never  seen,  or  received  any 
orders  or  money  from  him.  The  defendant  kept  a  book  with 
his  coachman,  in  which  entries  were  made  of  the  things  bought 
by,  and  sums  advanced  to,  the  latter.  The  advances  were  made 
on  general  account,  and  not  specifically  appropriated  to  particu- 
lar items.  The  defendant  gave  the  coachman  money  to  pay  the 
plaintiff's  demand,  but  he  applied  it  to  his  own  use.  Held,  if 
the  coachman  was  always  in  funds  beforehand  to  pay  for  the 
goods,  the  defendant  was  not  liable,  never  having  authorized 
him  to  pledge  his  credit.  But  if  he  was  not  so  in  funds,  he  had 
aright  to  obtain  credit,  and  the  defendant  was  liable,  notwith- 
standing the  advance  made  to  the  coachman.  A  verdict  was 
rendered  for  the  plaintiff.(3) 

11.  Where  a  vendor  brings  an  action  and  recovers  judgment 
against  his  agent  for  the  price  of  the  goods,  this  is  an  affirma- 
tion of  the  sale,  and  the  agent's  right  to  sell  cannot  afterwards 
be  disputed  by  him.  Thus  the  defendant  bona  fide  purchased 
goods  from  one  A  as  the  agent  of  the  plaintiff,  who  brought  an 

(1 )  Pcaico  V.  Rogers,  3  Esp.  214.     2  M.  &.  VV.  181. 

(2)  5  Esp.  76. 

(3)  Rushy  V.  Scarlett,  -5  Esp.  70". 


Sect.    IV,]  AGENTS,    FACT0K9     AND    EROKCRS.  55 

action  and  recovered  judgment  against  A  for  the  price.  The 
plaintiff  now  seeks  to  disavow  the  agency,  and  brings  replevin 
against  the  defendant  for  the  goods.  Held,  the  former  record 
was  conclusive  evidence  for  the  defendant. (1) 

12.  Where  one  assumes  to  act  for  another  without  authority, 
if  the  latter,  with  notice  of  all  the  facts,  expressly  ratify,  or  fail 
for  a  reasonable  time,  to  dissent  from,  the  act  done  ;  he  is  bound 
as  much  as  by  a  previous  authority. i.2) 

13.  Where  no  special  instructions  are  given,  a  general  power 
to  sell  implies  a  power  to  sell  in  the  usual  way ;  but  not  to  bar- 
ter, pledge,  or  sell  in  an  unusual  manner,  or  for  any  thing  but 
cash,  or  upon  the  ordinary  term  of  credit.  A  factor  may  sell 
on  credit,  though  not  expressly  authorized,  because  such  is  the 
constant  usage.  But,  for  the  same  reason  (reversed)  a  broker 
cannot  thus  transfer  stock.  If  a  factor,  contrary  to  usage,  sell 
on  credit,  no  title  passes  to  the  vendee,  unless  the  sale  were  in 
market  overt;  nor  even  then,  if  the  vendee  knew  that  the  ven- 
dor acted  for  another.  (3) 

14.  A  factor  has  no  power  to  larter  the  goods  of  his  princi- 
pal, even  with  one  ignorant  of  his  agency;  but  the  principal 
may  maintain  trover  for  property  thus  disposed  of;  unless  it  be 
done  in  market  overt  *{i) 

15.  One  to  whom  goods  are  consigned  for  sale,  is  justified  in 
incurring  any  expenses  in  effecting  such  sale,  which  a  prudent 
man  would  find  to  be  necessary  in  the  discreet  management  of 
his  own  affairs.  Thus,  where  the  owner  of  a  ship  conveyed  her 
to  a  creditor,  to  be  sold  by  him  to  the  best  advantage,  and  after 
payment  of  his  debt,  the  surplus  to  be  returned  to  the  debtor  ; 
held,  the  expense,  in  the  form  of  commissions,  of  selling  the  ves- 
sel through  the  medium  of  a  ship  broker  was  a  reasonable  charge 
upon  the  gross  proceeds  of  sale,  unless  some  local  usage  could 
be  shown  to  the  contrary.  (5) 

(1)  Marsh  v.  Pier,  4  Rawle,  273. 

(2)  2  Kent,  615. 

(3)  Paley,26.  212.     12  Mod.  514.     1  Camp.  258.     3  B.  &  C  342. 

(4)  Guerreiro  v.  Peile,  3  B.  &  Aid.  616. 

(5)  CoUey  v.  Merrill,  6  Greenl.  50. 


*  Aliter  in  England,  by  Sf.  6  Geo.  4,  cli.  94. 


56  PAKTIES    TO    SALES.  [Chap.    II. 

16.  The  following  cases  familiarly  illustrate  the  distinction 
between  a  general  and  a  special  agent.  If  a  livery-stable  keep- 
er, having  a  horse  for  sale,  directs  his  servant  not  to  warrant 
the  horse,  but  the  servant  disobeys  the  order  ;  the  master  is 
bound,  because  the  servant  did  not  transgress  the  genera  Iscope 
of  his  authority,  and  a  purchaser  without  notice  could  not  be 
affected  by  any  private  instructions  given  to  him.  Otherwise, 
where  the  owner  of  a  horse  sends  him  by  a  servant  to  a  fair  for 
sale,  with  similar  instructions.  In  such  case,  the  servant  alone 
is  bound  by  the  warranty.(l) 

17.  The  plaintiffs,  the  E.  I.  company,  sold  a  quantity  of  silks 
to  the  defendant,  through  a  broker,  whom  the  defendant  had 
instructed  to  purchase  the  hcstBengalraw  silk.  In  an  action  for 
the  price  of  the  silk,  the  defence  was  that  it  was  not  raw  silk, 
nor  of  the  best  quality.  Held,  the  broker  was  a  special  agent, 
and  havinc  deviated  from  his  instructions,  the  defendant  was  not 
responsible  for  his  acts,  nor  liable  to  the  present  action. (2) 

18.  It  is  held  in  an  old  case,  that  where  one  appoints  a  factor 
to  purchase  for  him  a  certain  kind  of  property,  as  for  instance 
tin,  and  that  only ;  the  factor  may  bind  him  to  pay  for  an  en- 
tirely different  article,  such  as  silh,  {saics  ;)  "  and  for  that,  let 
the  master  take  heed  what  factor  he  makes."(3) 

19.  Where  a  factor,  having  a  general  power  to  sell,  is  in- 
structed to  sell  for  not  less  than  a  certain  price,  and  does  sell 
for  less  ;  the  principal  is  still  bound,  unless  the  vendee  had  no- 
tice of  such  instruction.  On  the  other  hand,  though  a  special 
agent,  with  limited  authority,  cannot  bind  the  principal  if  he 
exceed  such  authority,  and,  if  he  is  expressly  limited  as  to  price, 
cannot  go  beyond  such  price  ;  yet,  though  a  price  be  specified, 
if  the  agent  is  at  liberty  to  exceed  it,  he  is  not  a  special  agent, 
and  the  principal  is  bound,  though  he  go  beyond  the  price  nam- 
ed.(4) 

20.  A  principal  is  bound  by  the  representations  or  admissions 
of  his  agent,  relating  to  the  business  of  the  agency  ;  but  not  by 

(1)  Fenn  v.  Harrison,  3  T.  R.  760.     2  Cr.  &  M.  392. 

(2)  E.  I.  Co.  V.  Hensley,  1  Esp.  112. 

(3)  Petties  v.  Soam,  Gouldsb.  138. 

(4)  Ambl.  497,  8.    Hick3  v.  Hankin,  4  Esp.  114. 


Sect.    IV.]  AOKNTS,    FACTORS    AND    BROKERS.  57 

any  others.  Thus  in  a  prosecution  to  recover  a  penalty  for 
selling  coals  short  of  the  legal  measure  ;  the  confession  of  the 
defendant's  agent,  employed  to  sell  them,  made  previous  to  the 
sale,  is  admissible  evidence;  but  not  a  confession  relating  to 
some  former  sale.(l) 

21.  A  principal  may  always  revoke  a  bare  or  naked  authority 
conferred  upon  an  agent,  and  will  no  longer  be  bound  by  his 
acts,  after  notice  of  such  revocation  to  the  agent  and  the  party 
with  whom  he  deals.  It  seems,  he  is  bound  by  any  bona  Jide 
acts  of  the  agent,  previous  to  receiving  notice  of  the  revoca- 
tion, which  are  to  his  disadvantage ;  but  may  waive  the  benefit 
of  those  which  are  in  his  favor.  He  is  also  bound  by  any  deal- 
ings of  the  agent  with  persons  who  have  previously  dealt  with 
him,  and  who  have  not  been  notified  of  the  revocation.  Where 
a  broker  has  verbally  agreed  to  sell  the  goods  of  his  principal, 
a  revocation  by  the  latter  avoids  the  sale,  it  not  being  legally 
valid  by  the  Statute  of  Frauds.  If  the  agent  has  a  'power  cou- 
pled icith  an  interest,  as  where  he  is  authorized  to  sell  goods  and 
apply  a  part  of  the  proceeds  to  his  own  debt ;  the  authority  can 
be  revoked  only  by  the  death  of  the  principal.  And  even  this 
is  no  revocation,  where  the  power  is  of  such  a  nature  as  may 
be  executed  in  the  name  of  the  agent  himself.(2) 

22.  It  has  been  already  intimated,  that  where  one  person  pur- 
chases goods  for  another,  but  without  disclosing  his  agency,  the 
vendor  may  call  upon  the  principal  for  payment,  though  he  gave 
credit  to  the  agent.  So  where  the  vendor  merely  knew  that  the 
nominal  vendee  was  acting  for  another,  but  not  the  name  of  the 
principal.  But  if  a  vendor  has  notice  who  the  principal  is,  and 
chooses  to  give  credit  to  the  agent,  he  can  resort  to  the  latter 
only. (3)  And  it  is  said,  generally  speaking,  by  the  usage  of 
trade,  where  an  agent  buys  for  a  foreign  house,  the  vendor  can- 
not resort  to  the  principal  for  payment.(4).     And,  on  the  other 


(1)  Peto  V.  Hague,  5  Esp.  134. 

(2)  2  Kent,  644.     Bac.  Abr.  Master,  &c.  k.     6  M.  &  R,  613.     10  B.  &  C.  1S7. 
2  Mas.  244.     7  Yes.  28. 

(3)  15  E.  62.     4  Taun.  574.  676,  n.   9  B.  &  C.  78.   3  Doug.  410.    10  B.  &  C.  671. 
6M.  &S.  1. 

(4)  Long  (Rand'i  El)  406,  7.  12.     . 

8 


58  PARTIES  TO  SALES.  [Chap.  II. 

hand,  if  one  sell  for  a  foreign  house,  he  may  sue  in  his  own 
name. 

23.  A  bankrupt  coachmaker,  who  continued  the  business  for 
the  benefit  of  the  assignees,  purchased  varnish  in  his  own  name. 
Held,  he  was  a  mere  agent,  and  the  assignees  were  liable  to  the 
vendor.  (1) 

24.  It  is  to  be  understood,  however,  that  a  principal  unknown 
at  the  time  of  purchase  will  be  held  liable  as  the  real  vendee, 
only  at  the  election  of  the  vendor.  The  agent  may  still  be  re- 
sorted to  for  payment.  Upon  the  same  principle,  where  one 
person  sells  property  in  his  own  name  but  for  another's  benefit ; 
either  the  real  or  nominal  vendor  may  bring  an  action  for  the 
price.(2) 

25.  Public  agents  are  not  personally  liable,  even  under  cir- 
.  cumstances  which  would  charge  private  agents  in  their  individ- 
ual capacity.  Thus,  where  the  governor  of  Quebec  pur- 
chased corn  and  grease  for  the  use  of  the  lieutenant  governor, 
commanding  a  fort  in  his  province  ;  he  was  held  rot  to  be  per- 
sonally liable.  So  a  commissary  is  not  liable  for  forage  furnish- 
ed for  the  army  upon  his  order.  So  the  captain  of  a  troop  of 
horse,  during  his  absence,  and  while  it  is  actually  commanded 
by  another,  who  issues  the  orders  for  subsistence  for  the  men  ; 
is  not  liable  to  pay  for  such  subsistence  ;  though  still  enti- 
tled to  a  profit  upon  the  sums  issued  on  that  account,  and 
still  commanding  the  troop.  And  though  present  with  the  troop, 
he  is  not  liable  for  forage  furnished  by  the  orders  of  a  clerk  of 
his  appointment,  but  receiving  his  directions  from  any  officer 
who  happened  to  command.  But  if  the  captain  receive  money 
from  the  paymaster  of  the  regiment,  to  whom  it  is  issued  by 
government,  and  on  whom  the  captain  has  the  right  of  drawing 
for  a  certain  sum,  according  to  the  returns  of  the  preceding 
month ;  the  party  who  furnishes  the  forage  may  recover  the 
amount  thus  paid  to  the  captain  in  an  action  for  money  had  and 
received.  (3) 

26.  It  has  been  seen  that  an  agent  is  always  liable  for   goods 

(1)  Kinder  v.  Howarth,  2  Stark.  354. 

(2)  7Taun.  295.     10  B.  &  C.  671.     15  E.  272.     2  N.  &  M.  617. 

(3)  2  Kent, 632.  Paley,  377,  8.  1  T.  R.  172.  180.  8  Taiin.  666.  3  B.  &,  B.  575. 
Rice  V.  Chute,  1  K.  579. 


Sect.    IV.]  AGENTS,    FACTOHS    AND    BROKERS.  69 

purchased  by  him,  where  the  vendor  receives  no  notice  that  they 
are  bought  for  the  use  of  another ;  because  in  such  case  credit 
is  given  to  the  agent  alone.  The  same  rule  applies,  where  such 
notice  is  given,  but  the  vendor  refuses  to  deliver  the  goods  on 
the  credit  of  the  principal  ;  for  then  he  has  no  claim  upon  the 
latter.  So,  also,  where  the  agent  discloses  that  he  is  acting  as 
such,  but  after  delivery  refuses  to  give  the  name  of  his  employ- 
er. But  if  the  agent  notifies  the  vendor  that  he  is  buying  for 
another,  and  gives  the  name  of  his  principal,  he  is  not  liable  for 
the  price. (I) 

27.  Where  one  contracts  in  writing  to  deliver  certain  goods, 
not  disclosing  that  he  is  a  mere  factor  at  the  time  ;  he  is  per- 
sonally responsible  for  breach  of  the  agreement,  although,  be- 
fore suit  brought,  the  promisee  is  informed  of  his  being  an 
agent.(-2) 

28.  If  an  agent,  purchasing  goods,  by  the  same  writing  acknow- 
ledges the  receipt  of  them  for  his  principal,  and  personally  pro- 
mises to  pay  the  price  ;  he  is  individually  responsible  for  the 
debt.(3) 

29.  A  purchased  a  cup  from  B.  B  inquired  whether  he 
should  send  it  to  the  house  of  A,  and  A  replied,  "  I  have  nothing 
to  do  with  it — send  it  to  the  clerk  of  the  course  at  Lichfield"— 
(meaning  the  race-course,  the  cup  being  designed  for  a  pre- 
mium.) The  clerk  owed  B  on  a  prior  account.  The  article 
was  sent  to  the  clerk,  according  to  A's  direction;  and  B  after- 
wards wrote  to  him,  successively  sending  him  an  account,  made 
out  to  himself,  and  threatening  him  with  suit,  if  not  paid.  The 
clerk  had  requested  A  to  order  a  cup  for  the  above  purpose. 
Held,  A  was  not  liable  for  the  price.  As  he  ordered  the  arti- 
cle, it  must  have  been  presumed  that  the  credit  was  given  to 
him,  unless  proved  to  have  been  given  to  another  ;  but  the  cir- 
cumstances of  the  case,  and  more  particularly  the  account  made 
out  to  the  clerk,  showed  that  he  was  the  person  trusted. (4) 

30.  The  relation  between  the  master  and  the  ownet  of  a  ship 


(1)  Owen  V.  Gooch,  2  E-p.  568. 

(2)  Paley,  260. 

(S)  A'lford  V.  Eglisfield,  Dyer,  230. 

(4)  Storr  v.  Scott,  6  C.  &  P.  241.     Seo  8  lb.  79. 


60  PARTIES    TO    SALES.  [Chap.    II, 

constitutes  a  peculiar  kind  of  agency,  governed  by  principles 
somewhat  different  from  the  general  rules  of  law  above  stated. 
Where  a  ship-master  purchases  necessaries  for  the  ship,  although 
he  discloses  the  name  of  the  owner  at  the  time;  both  master 
and  owner  are  liable  to  the  vendor.  On  the  other  hand,  a  ship- 
owner is  responsible,  though  he  have  let  the  vessel  to  the  master 
for  a  limited  time,  covenanting  that  he  shall  have  the  sole  man- 
agement of  her,  and  employ  her  for  his  sole  benefit,  with  a  cove- 
nant by  the  master  to  repair  the  vessel,  and  though  the  owner 
was  neither  known  to  the  vendor,  nor  knew  of  the  sale.  It 
might  be  otherwise,  if  facts  distinctly  showed,  that  the  vendor 
gave  credit  wholly  to  the  captain.  But  where  goods  were  order- 
ed for  a  ship  by  the  owners,  before  the  appointment  of  a  cap- 
tain, and  some  were  delivered  before,  and  others  after,  such  ap- 
pointment ;  held,  the  captain  was  not  liable  for  any  part,  no 
credit  having  been  given  to  him.  Nor  is  he  liable  in  any  case, 
where  it  distinctly  appears,  that  credit  was  given  to  the  owners 
only.  (I) 

31.  In  order  to  charge  an  owner,  the  articles  furnished  to  the 
captain  must  be  such  as  were  necessary  or  proper  for  the  ship 
at  that  time,  and  such  as  any  prudent  owner  might  be  expected 
to  procure.  The  person  attempted  to  be  charged  must  be 
shown  either  to  be  legal  owner,  or  to  have  so  represented  him- 
self; or  else  it  must  be  proved  that  the  articles  were  sold  upon 
his  credit.  Hence,  in  the  absence  of  the  two  last  requisites,  a 
person  to  whom  a  conveyance  of  a  vessel  was  made,  void  under 
the  registry  law,  cannot  be  charged  for  supplies  furnished  to 
such  vessel. (2) 

32.  Where  one  part-owner  of  a  ship  purchases  necessary  sup- 
plies, the  others  are  liable,  unless  the  contrary  is  specially 
agreed. (3) 

33.  The  question  may  arise,  whether  an  agent  can  charge  his 
principal- as  purchaser  from  him,  of  goods  bought  by  the  agent 
of  a  third  person.     On  this  point  it  has  been   held,  that    where 

(1)  Rich    V.  Coe,   Cowp.   636.     Farmer   v.    Davie'=,  1  T.    R.    i08.     Cag.   Temp. 
Hardw.  376. 

(2)  Abbott,  102.  19,  n.  I.     Harrington  v.  Fry,  2  Bing.  179. 
(3)  Abbott,  76. 


Sect.    IV.]  AGENTS,    FACTORS    AND    BROKERS.  61 

one  man  employs  another  to  purchase  goods  for  him,  and  the 
agent  buys  and  pays  for  them  by  a  bill  on  time,  the  agent,  it 
seems,  cannot  sue  the  principal  for  the  price ;  certainly  not,  be- 
fore maturity  of  the  bill. 

34.  A,  a  foreign  merchant,  employed  B  to  purchase  goods  for 
him  on  commission,  which  he  did,  from  C.  C,  knowing  the 
purchase  to  be  made  for  A,  made  out  the  invoices  to  B,  and 
took  in  payment  his  acceptances  at  six  months.  Held,  the 
above  facts  did  not  constitute  a  contract  of  sale  between  A  and 
B,  or,  if  they  did,  no  action  could  be  brought  by  B  against  A 
for  the  price  of  the  goods,  until  the  expiration  of  six  months. 
The  commission  to  be  paid  B  made  him  a  factor  or  agent,  and 
he  became  entitled  to  such  commission  upon  the  performance 
of  his  duty,  that  is,  making  payment  for  the  goods.  If  A  could 
be  called  upon  immediately  for  the  money,  his  object  in  employ- 
ing B  was  defeated,  and  he  stood  in  a  worse  situation  than  he 
would,  if  dealing  directly  with  the  vendor.  A  was  the  real  pur- 
chaser, and  B  merely  an  agent  in  procuring  the  goods,  and 
pledging  his  own  credit,  not  generally,  as  a  broker,  but  special- 
ly, by  guaranteeing  payment.  In  relation  to  C,  the  vendor,  B 
may  have  been  the  principal  and  the  vendee  of  the  goods,  and 
yet  as  between  him  and  A,  a  mere  agent  (1) 

35.  One  who  commits  a  fraud  through  a  sale  made  by  his 
agent  is  responsible  to  the  vendee ;  as  where  a  goldsmith  by  his 
servant  sells  counterfeit  plate,  or  a  taverner  corrupted  wine. 
And  the  principal  is  responsible  in  such  case,  even  though  the 
fraud  was  committed  without  authority  from  him,  if  done  in  his 
employment.*  As  where  an  agent  sells  counterfeit  jewels  for 
real  and  good  ones,  or  diseased  animals  as  healthy ;  or  where  a 
factor  beyond  sea  sells  silk  as  of  one  kind,  which  proves  to  be 
of  another.  The  principal  is  charged  in  such  cases,  upon  the 
common  rule,  that  where  a  loss  must  fall  on  one  of  two   inno- 

(l)  Seymour  v.  Pychlau,  1  B.  &  A.  14. 


*  An  ancient  authority  (Bro.  Abr.,  Action  on  the  Case,  pi.  8)  seems  to  be  contra, 
unless  the  act  be  done  through  the  covin,  or  by  command,  of  the  master. 


65J  PARTIES    TO    BALES.  [Chap.    II. 

cent  parties,  it  shall  be  borne  by  him  who  employed  and  trusted 
the  deceiver.(l) 

36.  The  preceding  remarks  are  particularly  applicable  to  the 
class'of  agents  commonly  called  factors.  Brokers  constitute 
another  important  class,  sustaining  the  same  general  relation. 
In  a  late  case,  a  distinction  is  taken  between  factors  and  brokers, 
as  to  their  respective  power  of  binding  their  principals.  Fac- 
tors are  said  to  have  possession  of  the  goods,  a  lien  upon  them, 
usually,  for  advances,  and  the  right  of  selling  in  their  own 
names,  neither  of  which  is  true  of  brokers.  Hence  the  latter 
do  not  appear  to  the  world  clothed  with  the  same  authority  as 
the  former,  and  have  not  the  same  opportunity  of  deceiving 
those  who  deal  with  them.  The  principal  is  not  bound  by  the 
contract  of  a  broker,  exceeding  his  authority,  unless  it  can  be 
shown,  that  the  former  by  his  conduct  gave  the  latter  the  means 
of  deceiving  third  persons,  that  they  actually  were  deceived, 
and  that  they  were  not  themselves  guilty  of  negligence. (2) 

37.  From  this  statement  it  may  be  inferred,  that  the  actual 
authority  conferred  upon  a  broker  is  not  in  all  cases  the  measure 
of  his  power  to  bind  the  principal.  Thus  if  property  is  so  plac- 
ed in  the  broker's  hands,  as  naturally  to  induce  the  belief  on  the 
part  of  third  persons,  that  he  is  authorized  to  sell  it ;  a  sale  by 
him  will  bind  the  owner. 

38.  A,  a  broker,  engaged  in  the  business  of  buying  and  sell- 
ing hemp,  purchased  a  quantity  of  hemp  for  B,  who  was  in  the 
habit  of  buying  it  at  the  London  wharves.  The  hemp,  at  the 
time  of  purchase,  was  transferred  in  part  into  A's  name,  and  the 
rest  into  the  names  of  A  or  B.  A  afterwards  sold  the  hemp  to 
C.     Held,  B  was  bound  by  the  sale. (3) 

39.  Certain  brokers  had  been  in  the  habit  of  purchasing  and 
selling  sugars  on  speculation,  in  their  own  names  and  at  their 
own  discretion,  for  their  principal,  and  of  paying  and  receiving 
the  price.  Sometimes,  in  a  low  state  of  the  markets,  they  had 
unlimited  authority  as  to  quantity  and  price,  at  others,  special 
instructions  to  purchase.  They  also  received  at  intervals  spe- 
ll) Paley,  301.  3  Pet.  413.  13  WenJ.  518.  1  Salk.  289.  2.  441.  2  Molloy,  334. 
(2)   Baring  v.  Cunie,  2  B.  &,  A.  148. 

(S)   Pickering  V.  Busk,  15  E.  38. 


Sect.    IV.]  AGENTS,    TACTOnS    AND      BROKERS.  63 

cial  instructions  to  sell,  and  were  limited  as  to  price,  and  advis- 
ed from  time  to  time  as  to  the  prospects  of  the  markets.  They 
kept  a  general  account  with  the  principal  of  their  payments  to 
and  receipts  from  him,  not  accounting  separately  for  each  lot 
purchased  and  resold.  Having  resold  a  particular  parcel,  which 
was  bought  and  paid  for  in  their  own  names,  and  lodged  in  their 
own  warehouse,  For  a  less  price  than  was  authorized  by  the  prin- 
cipal ;  held,  the  sale  was  valid,  its  validity  depending  upon  the 
general  course  of  dealing  of  the  parties,  and  not  upon  the  pri- 
vate instructions  in  this  particular  case.(l) 

40.  Possession  of  the  muniTimUs  of  title,  accompanying  that 
of  the  goods  themselves,  it  seems,  is  sufficient  evidence  of  a  bro- 
ker's authority  to  sell.  A,  residing  in  London,  having,  as  agent 
of  B,  imported  certain  goods,  sent  the  invoice  to  B,  but  delivered 
the  bill  of  lading  to  a  warehouse-keeper,  who  entered  the  goods 
in  his  books  as  A's  property.  The  bill  of  lading  made  the  goods 
deliverable  to  the  order  of  the  shipper  or  his  assigns,  and  was 
indorsed  in  blank.  Five  months  afterwards,  A,  without  author- 
ity, sold  the  goods,  and  B  brings  trover  against  C,  the  purchas- 
er. A  verdict,  having  been  rendered  for  the  defendants,  was  set 
aside,  and  a  new  trial  granted  ;  because  itw  as  not  left  to  the  jury 
to  say,  whether  B  had  enabled  A  to  appear  as  owner. (2) 

41.  Where  6ro^ers  effect  sales  or  purchases  of  personal  proper- 
ty, it  is  usually  done  by  means  o(  bought  and  sold  notes y  so  called. 
In  reference  to  these,  the  following  cases  have  been  decided. 

42.  In  an  action  brought  by  the  vendee  of  goods  upon  a  con- 
tract made  through  a  broker,  the  plaintiff  is  bound  only  to  pro- 
duce the  bought  note  delivered  him  by  the  broker,  and  to  prove 
that  the  latter  was  employed  by  the  vendor.  If  the  sold  note  va- 
ries from  the  bought  note,  the  burden  is  upon  the  defendant  to 
show  this  by  producing  the  former. (3) 

43.  Where  a  contract  of  sale  is  made  through  a  broker,  the 
bought  and  sold  notes,  not  the  broker's  entry  in  his  books,  con- 
stitute such  contract ;  more  especially  if  such  is  the  established 
usage. (4) 

(1)  Whitehead  v.  Tuckeit,  15  E.  400. 

(2)  Dyer  v.  Pearson,  4  D.  &  R.  648.     3  B.  &  C.  38. 

(3)  Hawes  v.  Forster,  1  Moo.  &  R.  368. 

(4)  lb. 


64  PARTIES  TO  SALES.  [Chap.  If. 

44.  Where  a  sale  is  made  through  a  broker,  and  the  note  of 
the  barorain  delivered  by  him  to  the  vendee  materially  differs 
from  that  delivered  to  the  vendor,  there  is  no  binding  contract. 
The  object  of  the  note  is,  not  merely  to  show  that  there  was  a 
bargain,  but  also  the  terms  of  such  bargain  ;  or,  at  least,  the 
extent  and  entirety  of  the  consideration  for  the  promise  upon 
which  suit  is  brought.  Hence,  where  the  vendee  refuses  to  take 
the  goods,  the  vendor  cannot  maintain  against  him  either  a  spe- 
cial assumpsit,  or  a  count  for  goods  bargained  and  sold.(l) 

45.  A  wharfinger,  with  whom  goods  are  deposited  until  they 
shall  be  sold,  cannot  make  a  valid  sale  of  them,  though  accus- 
tomed to  sell  property  of  the  same  description  from  the  wharf. 
The  same  is  true  of  warehousemen,  packers  and  carter s.[2) 

46.  Upon  the  general  principle,  that  property  entrusted  for  a 
special  purpose  by  one  man  to  another  continues  to  belong  to 
the  former,  notwithstanding  any  change  of  form  ;  where  the 
goods  of  a  principal  are  sold  by  his  agent,  or  exchanged  for 
others,  any  securities  taken  for  the  price,  or  property  received  in 
exchange,  will  be  owned  by  the  principal.  From  the  peculiar 
nature  of  money,  which  has  no  ear-mark,  it  will  be  otherwise 
where  the  price  is  received  in  cash.  In  such  case,  the  money 
belongs  to  the  agent,  leaving  him  accountable  merely  for  the 
same  amount.  But  if  the  money  be  kept  by  itself,  or  marked 
so  as  to  distinguish  it  from  any  other;  it  is  subject  to  the  same 
rule  with  other  kinds  of  personal  property. (3) 

47.  All  agents  and  factors  are  in  a  certain  sense  trustees,  and 
subject  to  the  general  principles  of  the  law  of  trusts.  In  this 
connection,  however,  it  may  be  proper  briefly  to  allude  to  the 
subject  of  sales  made  by  trustees,  technically  so  called  ;  that  is, 
by  persons  to  whom  either  the  law,  or  the  party  interested  in 
property,  has  committed  it,  to  be  managed  or  disposed  of  by 
them,  without  authority  to  bind  the  principal  in  any  other  way. 

48.  Where  property  is  in  the  hands  of  a  trustee  for  sale,  the 
law  demands  of  him  great  care  to  promote  the  best  interests  of 


(1)  Peltier  v.  Collins, 3  Wend.  459. 

(2)  Wilkinson  v.  King,  2  Camp.  335.     Monk  v.  WhiUenbury,2  B.  &  Ad.  484. 
(3)|Long,  427,8,  9. 


Sect.    IV.]  EXECUTORS   ^.\J>    ADMINISTRATORS.  65 

his  cestuys,  in  making  such  sale,  so  far  as  is  consistent  with  the 
rights  of  other  parties  concerned.  He  may  sell  either  at  public 
or  private  sale,  unless  specially  restricted  ;  but  is  bound  to  use 
air  proper  exertions  to  obtain  the  best  price;  and,  having  done 
this,  he  will  not  be  responsible  for  any  unfortunate  result  of  the 
sale.(l) 

49.  In  general,  neither  a  trustee,  nor  any  agent  or  auctioneer 
employed  by  him,  can  either  directly  or  indirectly  become  pur- 
chaser of  the  property  sold  _;  unless  the  relation  of  trustee  and 
cestui  has  been  dissolved,  or  the  latter  acts  with  full  notice  and 
waives  all  objections  to  the  sale  on  this  ground,  and  the  trustee 
takes  no  advantage  of  his  peculiar  situation.  But  a  saJe  origin- 
ally invalid  may  be  ratified  by  the  express  confirmation  of  the 
ctstui,  made  with  full  notice  of  hisrights,  and  after  all  undue 
influence  has  ceased. (2) 

50.  Under  this  head,  we  may  briefly  refer  to  the  subject  of 
sales  by  executors  and  administrators. 

In  general,  an  executor  or  administrator  may  absolutely  dis- 
pose of  the  deceased  person's  personal  property,  and  pass  a  title, 
free  of  all  liens  and  claims,  to  the  vendee.  So  also  he  may 
mortgage  such  property.  And  the  purchaser  or  mortgagee  will 
not  be  bound  to  see  to  the  application  of  the  purchase  money. 
But  if  a  sale  be  made  at  a  sacrifice  to  one  having  notice  that 
there  are  no  debts  :  if  there  be  collusion  between  the  vendor 
and  vendee  :  or  if  the  latter  aid  the  executor,  &lc.  in  commit- 
ting waste  or  other  breach  of  duty  :  he  will  share  his  responsi- 
bility to  the  full  value  of  the  property  :  and  creditors  or  legatees 
may  within  reasonable  time  follow  it  in  his  hands.  An  execu- 
tor, &:c.  cannot  sell  or  pledge  the  assets  to  pay  or  secure  his 
own  private  debt.  In  general,  it  is  no  proof  of  collusion,  that 
a  party  receives  the  property  by  way  of  sale  or  pledge,  for  a 
consideration  advanced  at  the  time,  though  such  property  is  spe- 
cifically disposed  of  by  the  will  or  otherwise.  Otherwise,  where 
he  receives  the  property  on  account  of  a  subsisting  debt.     To 


(1)  Lewin  en  Trusts,  S67.     3  Rcse,  66.     5  Madd.  440.     6  Sim   504 

(2)  Lewin.  376.     6  Cow.  362.     1  Pet.  C.  3&4.     Lewin,  S»0. 

9 


66  PARTIES    TO    SALES.  [Chflp.    II. 

each  of  these  rules,  however,  there  may  be  exceptions,  arising 
from  peculiar  circumstances.(l) 

51.  An  executor  may  claim  the  price  of  goods  belonging  to 
the  deceased,  though  sold  without  authority  from  him,  and 
though  the  vendee  have  promised  to  pay  another  person. 

52.  An  auctioneer,  employed  by  a  supposed  executor,  sold 
goods  of  the  testator ;  but,  before  payment,  the  lawful  executor 
claimed  the  price  from  the  purchaser,  who  had  expressly  agreed 
to  pay  the  auctioneer,  on  being  allowed  to  take  away  the  pro- 
perty, which  he  did.  Held,  the  purchaser  was  liable  to  the  law- 
ful executor,  and  therefore  the  auctioneer  could  not  sustain  an 
action  against  him. (2) 

53.  Under  the  present  title,  also,  may  be  considered  the  sub- 
ject of  sales  made  by  virtue  of  a  judicial  order  or  decree,  or 
upon  execution  ;  such  sales  being  effected  through  the  interven- 
tion of  agents,  appointed  not  by  the  party  himself,  but  by  the 
law. 

54.  Sales  made  under  decretal  orders  of  Chancery,  are  under 
the  control  of  the  Court,  and  may  be  rescinded  or  opened  at 
any  time  previous  to  confirmation.  But  when  confirmed,  any 
error  in  the  decree  will  not  affect  the  title  of  the  vendee.  He 
has  a  right  to  presume,  that  a  sale  was  properly  ordered.  But 
his  title,  it  seems,  is  liable  to  be  impeached  by  parties  claiming 
the  property,  who  were  not  properly  brought  before  the  Court. 
The  Court  will  not  protect  him  from  a  title  not  in  issue,  or  af- 
fected by  the  decree ;  more  especially,  where  he  had  notice  of 
such  title.  And  a  sale  is  ineffectual,  unless  conformable  to  the 
decree. (3) 

55.  A  sale  on  execution,  conducted  according  to  law,  passes 
a  good  title,  if  the  process  be  not  absolutely  void,  though  void- 
able for  irregularity,  or  founded  upon  an  erroneous  judgment. 
Otherwise  where  the  Court  has  no  jurisdiction,  or  the  execution 


(1)  2    Wms.   609.  10.  12.  13.     2    Story  t>u  Eq.  384.    1.544.     1  Aik.  403.   3.  237. 
14  Ves.  358. 

(2)  Dickeuson  v.  Naul,  4  Barn.  &  Ad.  638. 

(3)  2  Sch.  &  Lof.  577.     3  Bligh.  188.     9  Ves.  jr.  37. 


Sect.    IV.]  OFFICERS    OF    THE    LAW.  67 

is  void  for  irregularity,  or  the  proceedings  of  the  officer  do  not 
conform  to  the  requisitions  of  the  law.(i) 

56.  It  was  formerly  held  in  Massachusetts,  that,  in  general, 
an  execution  purchaser,  receiving  and  paying  for  the  goods,  ac- 
quires a  title  to  them,  notwithstanding  any  irregularity  in  the 
officer's  proceedings.  If  it  were  not  so,  both  creditor  and 
debtor  must  suffer  loss,  because  no  purchaser  of  the  property 
could  be  found.  But  the  officer's  return  ought  to  show  a  com- 
pliance with  the  law;  otherwise  the  vendee  would  not  hold  his 
title.  A  different  rule  from  the  above  applies  to  the  sale  of 
shares  in  a  corporation.  These  are  more  like  choses  in  ac- 
tion, or  mere  evidence  of  property,  and,  at  common  law,  cannot 
be  sold  on  execution.  Hence,  the  Statutory  requirements  must 
be  strictly  pursued,  to  give  a  title.  If  certificates  of  shares 
were  given  to  the  vendee,  this  would  be  more  like  delivery  of  a 
chattel.  But  even  in  such  case,  unless  the  return  showed  a 
compliance  with  the  requisitions  of  the  law,  the  corporation 
might  not  be  justified  in  giving  certificates  to  the  purchaser.  (2) 

57.  But,  in  a  very  recent  case  in  Massachusetts,  it  has  been 
decided  otherwise  with  respect  to  the  return  of  the  officer.  In 
this  case,  A  recovered  an  execution  against  B,  upon  which  C, 
an  officer,  seized  and  sold  a  horse,  but  the  return  did  not  state 
where  the  notifications  were  posted*.  B  brings  trover  against 
A  and  C.  Held,  parol  evidence  was  admissible  of  a  legal  no- 
tification, and  that  the  officer  might  amend  his  return.  The 
Court  remarked,  that  a  different  rule  would  operate  to  the  inju- 
ry  of  both  creditor  and  debtor,  because  no  purchaser  would  be 
found  but  at  a  very  low  price.  Also,  that  the  old  rule  was  in- 
consistent with  the  principle,  that  a  seizure  of  goods  upon  ex- 
ecution discharges  the  debtor,  though  the  sheriff  waste  them 
or  fail  to  return  the  execution.  The  case  differs  from  a  sale  of 
land  upon  execution,  for  there,  to  give  a  perfect  title,  the  pro- 

(1)  1  Cow.  734.     Cro.  ETiz.  279.     1  M.  &  S.  425.    2  Conn.  700.     16  John.  537 
8  Co.    141b.     7   B.  &  C.  536.     10  Co.  63  b.     3  John.  523.     Mctc.  Yclv.  180  n. 

(2)  Howe  V.  Siark%voather,  17  flLi«5.  240.     Davis  v.  MaynaiJ,  9.  242. 


*  It  mentioned  merely  "  two  public  places"    The  amendment  was  said  not  to  con- 
tradict the  re'urn,  but  only  make  i!  more  distinct. 


68  PARTIES  TO  sALKs.  [Chap.   If. 

ceedings  must  all  appear  of  record.  (The  action  was  remand- 
ed to  the  Court  of  Common  Pleas,  with  instructions  to  the  offi- 
cer to  apply  to  the  magistrate  who  issued  the  e.Kecution,  for 
leave  to  amend.  And  the  amount  of  the  execution  was  deduct- 
ed from  the  value  of  the  horse,  in  mitigation  of  damages.)  (1) 

58.  The  return  upon  an  execution  stated  the  advertisement 
of  goods  sold  to  have  been  made  twenty-four  hours  before  the 
sale.  The  debtor  brings  an  action  of  trespass  against  the  offi- 
cer. Held,  the  defendant  could  not  be  permitted  to  show  by 
parol  evidence,  that  the  time  \v?is  forty-eight  hours.(2) 

59.  A  fraudulently  purchases  goods  from  B,  and  the  goods 
are  afterwards  taken  upon  an  execution  against  the  latter.  In 
an  action  by  A  against  the  officer,  A  cannot  avail  himself  of 
any  irregularity  in  the  proceedings  connected  with  the  execu- 
tion sale. (3) 

60.  Where  the  purchaser  of  property  at  an  execution  sale 
refuses  to  receive  and  pay  for  it,  the  officer  may  sell  it  anew. (4) 

61.  A  sheriff  cannot  legally  purchase  goods  sold  by  himself. 
Such  purchase  is  a  conversion,  which  will  justify  an  action  of 
trover  against  him.  But  he  may  show  the  amount  paid  to  the 
creditor  in  mitigation  of  damages. (5) 

62.  Where  goods  have  been  levied  upon  by  execution,  and  the 
judgment  debtor  sells  them  with  the  sheriff's  assent,  such  sale 
does  not  divest  the  title  of  a  previous  purchaser  from  the  debtor, 
though  the  previous  sale  would  be  void  against  the  execution. (6) 

63.  In  immediate  connection  with  the  subject  of  sales  made 
by  and  to  factors  and  agents,  may  properly  be  considered  those 
made  by  or  to  partners.  The  right  and  power  of  one  partner 
to  bind  his  firm,  depends  in  great  measure  upon  the  fact,  that 
he  is  expressly  or  by  implication  their  authorized  agent,  in  re- 
lation to  the  partnership  business.* 

(1)  Richards  v.  Smith,  S.  J.  C.  Norfolk,  Oct.  1839. 

(2)  Purrington  v.  Loring,  7  Mass.  388.     (Sae  Law  Reporter,  Jan.  1840.) 

(3)  Daggett  v.  Adams,  1  Greenl.  198. 

(4)  Winslovv  v.  Loring,  7  Mass.  392. 
(b)  Perkins  v.  Thompson,  3  N.  H.  144. 
(6)  Frost  V.  Hill,  3  Wend.  386. 

*  This  power  i?  sometimes  spoken  of  as  resulting  from  the  joint  tenancy  of  part- 
ners.    Gow,  80. 


Sect.    IV.]  •         PAUTNERS.  69 

64.  In  general,  a  contract  of  sale  made  by  one  partner  binds 
the  firm.  Each  member  is  individually  liable  for  the  fulfilment 
of  the  entire  agreement.  But  the  rule  applies  to  such  matters 
only  as  are  within  the  scope  of  the  partnership  business,  or 
arise  out  of  its  regular  transactions.  With  this  qualification, 
also,  a  sale  to  one  partner  binds  the  firm  to  pay  the  stipulated 
price,  although  the  vendee  purchased  with  a  fraudulent  intent, 
and  has  actually  applied  the  property  to  his  own  use  ;  unless 
the  vendor  was  privy  to  such  intent.(l) 

65.  With  regard  to  sales  made  brj  a  partner  of  partnership 
property,  the  following  distinction  has  been  taken.  Where  the 
property  is  of  such  a  nature,  as  shows  that  it  is  intended  to  be 
sold,  and  the  profits  of  the  concern  to  be  derived  from  a  sale  ; 
a  sale  by  one  is  not  only  sufficient  to  pass  the  title  to  a  purchas- 
er, but,  as  between  the  partners  themselves,  is  regarded  as  the 
joint  act  of  all,  and  creates  no  liability  on  the  part  of  the  vendor 
to  the  other  partners,  except  accounting  for  a  share  of  the  pro- 
fits. But  where  partnership  property  is  from  its  nature  proper- 
ly intended  only /or  use,  as,  for  instance,  in  the  case  of  tools  and 
machinery  ;  although  the  sale  by  one  may  be  considered  as 
valid  against  all,  so  far  as  to  pass  a  title,  yet  it  is  a  wrongful  act 
on  the  part  of  the  vendor  towards  the  other  partners  (2)  In  a 
case  in  Massachusetts,  where  one  partner  had  undertaken  to 
dispose  of  a  sliip  belonging  to  the  firm,  it  was  objected  that  the 
general  rule  dud  not  apply  to  this  species  of  property,  on  the 
grounds  of  its  superior  value,  and  its  being  usually  transferred 
by  sealed  instruments.  But  the  Court,  recognizing  the  power 
of  one  partner  to  dispose  of  any  other  partnership  effects,  held 
that  ships  did  not  constitute  an  exception  to  the  general 
rule.(3) 

66.  Partnership  in  a  particular  adventure,  as  well  as  in  gene- 
ral trade,  authorizes  one  member  of  the  firm  to  sell  the  partner- 


(1)  Ricev.  Shute,  5Bun-.2613.     2  Cox,  312.    2  B.  &  A.  673.    1  Cr.  &  J.  500.    1 
Sim.  376.     1  Camp.  185.     12  E.  317.     2  .B.  &  A.  795.     6  B.  &  C.  651.  9.  532. 

(2)  Vickery  v.  Taft,  Chip.  (Verm.)  242.     See   3  John.   70.  4.  277.     Godb.  244, 
Gow,  79.    SB.  &  A.  405.    2  B.  &  A.  678. 

(3)  Lamb  v.  Durant,  12  Masf.  54. 


70  PARTIES    TO    SALES.  [Chap.    II. 

ship  property.  But  one  par t-oiontr  or  tenant  in  common  has  not 
the  same  power.(l) 

07.  A  subsequent  ratification  by  one  partner  of  a  sale  made 
by  another,  binds  the  former  as  effectually  as  a  previous  au- 
thority. 

63.  A  and  B  were  jointly  interested  in  a  stock  of  oil.  A  con- 
tracted to  sell  it,  without  authority  from  or  notice  to  B.  B,  on 
being  notified,  refused  to  be  bound  by  the  contract,  but  after- 
wards verbally  assented.  Samples  were  delivered  to  the  pur- 
chaser. Held,  the  ratification  was  equivalent  to  a  previous  au- 
thority.(2) 

69.  Where  there  is  a  doubt,  whether  a  party  purchasing 
goods  bought  them  for  himself  alone  or  for  the  benefit  of  others 
also,  as  partners  ;  to  prove  the  latter  point,  evidence  may  be  of- 
fered of  acts  subsequent  to  the  delivery  of  the  property.  But 
such  evidence  will  be  insufficient  to  charge  third  persons,  who 
afterwards  become  partners,  if  it  is  clearly  shown  that  no  part- 
nership existed  at  the  time.  If  one  partner  purchases  in  his  own 
name,  but  the  property  is  delivered  to  all,  the  firm  are  bound. 
So,  if  several  persons  agree  to  share  in  goods  to  be  purchased, 
and  in  pursuance  of  such  agreement  one  of  them  makes  the 
purchase,  though  without  express  authority  from  the  rest,  and  as 
for  himself  only.  But  it  is  otherwise,  where  several  persons, 
though  jointly  interested  in  the  same  general  business,  have  dis- 
tributed it  among  themselves,  each  taking  the  exclusive  manage- 
ment of  a  particular  section.  Thus,  where  several  persons  were 
jointly  concerned  in  running  a  stage,  and  each  supplied  horses 
for  a  certain  part  of  the  route;  it  was  held,  that  one  who  fur- 
nished grain  to  one  of  the  partners  could  not  hold  the  others  for 
the  price.  (3) 

70.  The  warranty,  misrepresentation  or  fraud  of  one  partner 
in  buying  or  selling,  within  the  scope  of  the  partnership  busi- 
ness, binds  the  firm. (4) 

71.  After   dissolution    of    a    partnership    by  bankruptcy    or 

( 1 )  CoUyer,  218.     5  B.  &  A.  393. 

(2)  Soames  v.  Spencer,  1  Dow.  &  Ry.  32. 

(3)  Saville  V.  Robertson,  4  T,  R.  720.  Gouthwaile  r.  Duckworth,  12  E.  421.  Bar- 
ton V.  Hanson,  2  Tauii.  49. 

(4)  Cullycr,  241—262. 


Sect.    IV.]  PARTNERS.  fi 

Otherwise,  one  partner  has  no  power  to  dispose  of  the  partner- 
ship property.  But  a  secret  act  of  bankruptcy  on  the  part  of 
one  will  not  prevent  the  other,  being  solvent,  from  selling  the 
joint  effects,  if  done  without  fraud,  and  for  valuable  considera- 
tion.(1) 

72.  One  of  four  partners  having  died,  and  the  partnership 
being  thereby  dissolved,  one  of  the  survivors  took  out  adminis- 
tration upon  the  estate  of  the  partner  deceased.  The  three 
survivors  then  formed  a  new  firm,  and  took  the  stock  on  hand, 
each  giving  his  note,  payable  to  the  three,  for  one  third  of  the 
appraised  value.  Held,  the  supposed  sale  was  void,  and  the 
three  survivors  were  jointly  accountable  to  the  funds  of  the  old 
firm  for  the  value  of  the  stock. (2) 

73.  The  following  case  turns  upon  the  distinction  between  a 
sale  made  in  construction  of  law  to  one  really  but  not  ostensi- 
bly connected  with  the  nominal  vendee,  whereby  he  becomes 
party  to  the  original  purchase  ;  and  a  mere  sub-sale  to  him  by 
the  former  purchaser. 

74.  An  indictment  for  selling  a  lottery  ticket  alleged  that  it 
was  sold  to  A   and  B.     The  evidence   showed,  that  A  and  B 
agreed  to  go  shares  in  a  ticket,  and   afterwards  A,   in  presence 
of  B,  selected  the  ticket  from  a  number  produced  by  the  defend- 
ant at  A's  suggestion.     Both  paid  their  respective  shares  of  the 
price,  B  laying  the  money  on  the  counter.     A,  with  B's  consent, 
kept  the  ticket  till  the  drawing  of  the  lottery.     The  ticket  hav- 
ing drawn  a  prize,  the  defendant  paid   the  whole  to  A,  and   A 
paid  B  his  share.     There  was  no  communication  between  A  and 
B,  from  the  time  of  purchase  till  information  was  given  of  the 
prize,  and   the  money  paid.     Held,  the  facts  supported  the  in- 
dictment  by   showing   a   joint   purchase.     It    was    immaterial, 
whether  the  defendant  was  paid  by  the  particular  money  advanc- 
ed by  each  of  them,  or  otherwise.     As  there  was  no  subsequent 
agreement,  B  must  have  been  originally  an  owner,  because  he 
received  a  part  of  the  prize.     Even  if  B  had  advanced  nothing, 
nor  been  present  at  the  sale,  the  purchase  according  to  a  prior 
agreement  would  be  a  joint  act  and  vest  the  title  in  both,  B  be- 
ll) Hague  V.  Ro!leston,4  Burr.  2174.     Fox  v.  Hanbnry,  Cowp.  445. 

(2)  Washburn  \ ,  Goodman,  17  Pick.  519. 


72  PARTIES  TO  SALES.  [Chap.  If. 

coming  indebted  to  A  for  the  price.  It  was  so  far  a  partner- 
ship, that  one  might  act  for  both,  contract  for  the  purchase,  re- 
ceive a  delivery,  and  in  case  of  credit  bind  both  for  the  price. 
The  fact  that  the  defendant  was  ignorant  of  B's  interest,  made 
no  difference.  Tiiere  was  no  sub-sale,  as  in  the  case  of  Young 
V.  Hunter,  4  Taun.  581.(1) 

75.  A  sale  may  take  place  as  well  between  partners  or  joint 
owners,  as  from  or  to  them,  to  or  by  a  third  person.  The  gen- 
eral principle  is,  that  where  two  parties  are  jointly  interested  in 
the  same  property,  each  stands  to  some  extent  in  the  relation  of 
trustee  to  the  other,  and  is  subject  to  the  restrictions  and  liabil- 
ities, in  buying  and  selling  the  common  property,  which  that  re- 
lation involves.  But  in  a  recent  case  in  Massachusetts  it  has 
been  held,  that  where  two  tenants  in  common  of  a  ship  are  not 
jointly  engaged  in  buying  or  building  ships  for  sale,  they  are 
not  placed  in  such  a  relation  of  mutual  trust  and  confidence 
with  respect  to  the  sale  of  the  vessel,  that  each  is  bound  in 
dealing  with  the  other  to  communicate  all  the  facts  known  to 
him,  which  may  affect  the  price  or  value  ;  but  they  may  deal  with 
each  other  as  distinct  owners.  Thus  one  of  them,  in  bargaining 
for  a  purchase  from  the  other  of  his  share,  is  not  bound  to  inform 
him  that  a  third  person  had  previously  agreed  to  pay  him  (the 
vendee)  a  larger  price  for  the  whole.  But  any  studied  eflbrt  at 
concealment,  or  even  slight  fraudulent  suggestion  or  represen- 
tation, would  avoid  the  sale  ;  if  such  suggestion  was  any  part  of 
the  vendor's  inducement  to  sell,  though  not  the  predominant 
motive.  In  an  action  brought  by  one  part-owner  against  another 
for  such  fraudulent  representation,  it  was  held,  that  the  defend- 
ant might  show,  for  the  purpose  of  disproving  fraud,  and  upon 
the  question  of  damages,  that  he  paid  the  full  value  of  the  ves- 
sel ;  but  that  the  price  agreed  to  be  paid  the  defendant  by  the 
third  person  was  strong,  though  not  conclusive  evidence  of  the 
value.(2) 

(1)  Commonwealth  v.  Lang,  14  Pick.  76, 

(2)  Matthews  v.  Bliss,  22  Pick.  48. 


CHAPTER  III. 


DELIVERY  AND  ACCEPTANCE. 

Section  I. — general  principles  and  exceptions  thereto. 

1.  Delivery,  in  what  points  of  view  material — general  princi- 

ples. 

2.  Formal  delivery  unnecessary,  when. 

4.  Constructive  delivery  ;  ponderous  articles. 
10.  Marking  the  vendee's  name. 

14.  Sale  by  a  tenant  in  common. 

15.  The  vendee's  dealing  with  the  property  as  his  own. 

16.  Sale  of  goods  under  attachment. 

20.  Sale  before  attachment,  without  delivery. 

24.  Order  upon  a  depositary. 

32.  Transfer  in  the  dock-books. 

33.  Delivery  of  store-keeper's  receipt.  , 

34.  Of  an  invoice. 
36.  Of  a  key. 

38.  Lease  of  the  building  in  which  goods  are  kept. 

40.  Sale  to  one  already  in  possession. 

46.  Indorsement,  Sfc.  of  bill  of  lading. 

54.  Notice  to  a  third  person,  having  possession. 

59.  Sale  by  one  tenant  in  common  to  another. 

61.  Property  borrowed  by  the  vendor,  Sfc. 

63.  Constructive  delivery,  where  the  vendor  retains  possession. 

74.  Part  delivery. 

10 


74  DEMVKRY    AND    ACCEPTANCE.  [Chap.    III. 

84.  Delivery  of  a  sample. 

86.   Conditional  deliver y  ;  when  a  condition  of  the  sale  is  waived 

by  delivery,  Sfc. 
98.   Conditional  sale,  and  delivery  for  an  intermediate  purpose. 
1 00.  Delivery  to  a  catrier,  S^c. 

Section    II. — necessity    of    delivery    in    relation    to 

CREDITORS,  die. 

] .  General  doctrine. 

3.  Distinction  hettceen  absolute  and  conditional  sales,  S^c. 

4.  Decided  cases. 

19.  Sale  of  goods  not  in  the  vendor's  possession. 

20.  Change  of  possession,  inhat  is. 

23.  Evidence  to  rebut  fraud. 

24.  Possession  taken  after  the  sale. 

25.  Execution  sales. 

26.  Purchase  with  another' s  funds ,  S^c. 

30.  Successive  conveyances  to  tico  creditors. 

31.  Notice  to  a  particular  creditor. 

32.  Property  incapable  of  delivery. 

33.  Fraud,  whether  a  question  of  law  or  fact. 

Section    III. — effect    of    a  sale,  where    any    thing    re- 
mains   TO    BE    DONE    TO    THE    THING    SOLD    BY    THE    VENDOR. 

1.   General  principle  and  decided  cases. 
15.  Delivery,  loith  a  conditional  agreement  to  take  back. 
17.  Exceptions  to  the  general  rule. 

Section  IV. — delivery  to  one  of  two    purchasers    from 

THE    same    vendor. 

Section  V. — sale  of  ships  at  sea,  &c. 
Section  VI. — delivery  obtained  by  fraud. 
Section  VII. — time  and  place  op  delivery. 
1.  Agreement  to  deliver  at  a  certain  time  and  place. 


Sect.    I.]  GENERAL    PRINCIPLES,    EXCEPTIONS,  &LC.  75 

3.  Agreement  to  deliver  icithout  specifying  time  and  place. 

4.  Time  of  delivery. 
10.  Place  of  delivery. 

Section  VIII. — acceptance. 


Section  I. — general  principles  and  exceptions  thereto. 

1.  By  the  common  law,  a  sale  of  chattels,  as  between  vendor 
and  vendee,  passes  the  title  without  delivery. (1)  But  there  are 
two  points  of  view,  in  which  the  question  of  delivery  becomes 
highly  important,  and  which  have  given  rise  to  very  numerous 
decisions  upon  the  subject.  One  arises  from  a  provision  of  the 
Statute  of  Frauds,  making  delivery  an  equivalent  or  substitute 
for  a  written  agreement,  and  effectual  to  bind  the  bargain,  which, 
under  that  statute,  would  otherwise  be  void.  The  other  has  re- 
lation to  the  rights  of  third  persons,  who  are  connected  with, 
or  claim  under  the  vendor,  by  attachment,  execution,  subse- 
quent conveyance,  or  otherwise;  and  involves  the  very  impor- 
tant and  voluminous  law  of  fraudulent  conveyances.  In  regard 
to  the  latter  point,  it  is  said  to  be  the  general  rule,  that  delivery 
of  possession  is  necessary,  in  the  conveyance  of  personal  chat- 
tels, as  against  every  one  but  the  vendor.  (2) 

2.  But  where  a  sale  is  bona  fide  and  for  valuable  considera- 
tion, slight  evidence  of  delivery  is  sufficient.  And  it  is  enough 
for  the  vendee  to  take  possession  with  consent  of  the  vendor, 
though  there  be  no  formal  delivery. (3) 

3.  The  terms  of  a  sale  being  settled,  the  vendor  accepted  the 
vendee's  promise  to  pay  the  agreed  price  to  a  third  person,  not 
making  actual  payment  a  condition  of  sale.  Held,  tlie  vendee 
gained  a  title  to  the  property  with  the  actual  possession,  by  con- 

(1)  See  Hob,  41.     Holt,  20.  n. 

(2)  Lanfaar  v.  Sumner,  17  Mass.  113.    Ricker  v.  Cross,  b  N.  H.  o71. 

(3)  Shuiiway  \.  RuUer.  8  Pjck.  443. 


76  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

sent  of  the  vendor,  express  or  implied  ;  this  being  equivalent  to 
formal  delivery.(l) 

4.  The  law  recognizes  a  constructive,  as  well  as  actual  de- 
livery; and  it  is  upon  the  question  what  constitutes  such  con- 
structive delivery,  that  most  of  the  cases  in  the  books  have 
arisen. 

5.  A  sale,  without  delivery  or  possession  taken  by  the  ven- 
dee, passes  the  title,  if  the  property  is  of  such  a  nature,  and  so 
situated,  that  his  possession  would  be  impracticable  or  incon- 
venient. And  where  the  thing  sold  is  not  present,  even  a  sym- 
bolical delivery  is  perhaps  unnecessary.  Thus  where  goods  are 
ponderous  and  incapable  of  being  handed  over  from  one  to 
another,  there  need  not  be  an  actual  delivery,  but  only  that 
which  is  tantamount,  such  as  the  delivery  of  the  key  of  a  ware- 
house, in  which  the  goods  are  lodged,  or  of  other  indicia  of 
property,  or  some  act  of  the  vendee  from  which  possession  and 
ownership  may  be  inferred. *(2) 

6.  A  purchased  from  B  the  boards  which  should  be  manufac- 
tured from  a  certain  quantity  of  logs  in  B's  possession,  to  be 
paid  for  at  so  much  per  hundred  feet,  when  sawed.  The  logs 
were  sawed  and  piled,  and  A  notified  thereof  Held,  this  was 
a  sufficient  delivery  of  cumbersome  articles,  to  pass  the  proper- 
ty to  the  vendee.(3) 

7.  A  agreed  with  the  managers  of  a  lottery,  to  take  2500 
tickets,  giving  approved  security  for  the  price  upon  delivery. 
The  tickets  were  specified  in  a  schedule,  and  deposited  in 
books  of  a  hundred  each,  thirteen  of  which  were  received  and 
paid  for,  and  the  remaining  twelve  superscribed  with  the   name 

(1)  Bucknam  v.  Nash,  3  Fairf.  474. 

(2)  JeweU  V.  Warren,  12  Mass.  300  .  Badlam  v.  Tucker,  1  Pick.  389.  Ricker  v. 
Cross,  5  N.  H.  571,  2.  Parsons  v.  Dickinson,  11  Pick.  354.  Chaplin  v.  Rogers,  1  E. 
194,5.     Rice  V.  Austin,  17  Mass.  197.     Howe  v.  Starkweather,  lb.  240. 

(3)  Bates  V.  Conkling,  10  Wend.  389. 


*  By  the  civil  law,  there  are  various  ways  of  taking  possession  of  property  sold, 
corresponding  to  the  ceremonies  in  our  law,  of  the  acknowledgment  and  registration  of 
deeds,  delivery  of  keys,  or  giving  a  bill  of  lading  of  goods  at  sea.  But  the  property 
in  goods  does  not  pass  without  actual  or  legal  delivery.  Lanfear  v.  Sumner,  17  Mass. 
114. 


Sect.    1.]  GENERAL    PRINCIPLES,    EXCEPTIONS,   &C.  77 

of  A  by  himself,  and  indorsed  by  the  agent  of  the  mana- 
gers, thus — "  purchased  and  to  be  taken  by  A,"  with  a  further 
indorsement  upon  the  envelope  covering  the  whole — "  A,  twelve 
books."  At  the  second  day's  drawing,  one  of  the  last  designat- 
ed tickets  drew  a  prize  of  $20,000.  Between  the  third  and 
fourth  days'  drawing,  A  tendered  sufficient  security,  and  de- 
manded the  remaining  1200  tickets,  but  the  managers  refused 
to  deliver  the  prize  ticket.  Held,  the  property  of  the  tickets 
passed  to  A  when  the  selection  was  made  and  agreed  to,  and 
they  remained  in  possession  of  the  vendors  only  as  security. 
Hence  A  might  recover  the  prize.  The  contract  was  an  en- 
tire one,  and  not  divisible.  The  article,  though  bought  in  gen- 
eral terms  from  a  large  number  of  the  same  description,  yet  be- 
ing afterwards  selected  and  set  apart  with  the  assent  of  parties 
as  the  thing  purchased,  was  as  much  identified  and  sold,  as  if 
selected  before  sale,  and  specified  in  the  contract. (1) 

8.  Sale  of  logs  lying  in  a  boom.  The  vendor  went  in  sight  of 
the  logs  with  the  vendee,  and  showed  them  to  him,  but  the  latter 
placed  no  person  in  keeping,  allowing  them  to  lie  as  they  were, 
till  he  should  have  occasion  to  use  them.  The  transfer  was 
made  by  a  bill  of  parcels,  attested  by  a  witness,  valuing  the  pro- 
perty at  $1602,  and  acknowledging  payment  received  "  by  in- 
dorsing for  me  at  the  Kennebunk  bank  for  $1350."  The  ven- 
dee was  at  the  time  a  surety  for  the  vendor  to  this  amount. 
The  day  after  the  transaction,  the  vendor  died,  and  his  admin- 
istrator took  charge  of  the  logs,  which  were  otherwise  in  dan- 
ger of  being  lost.  Held,  the  vendee  might  maintain  ti-over 
against  the  administrator,  there  having  been  a  sufficient  delivery 
to  pass  the  property.  The  fact  of  the  defendant's  taking  care 
of  the  logs  made  no  difference,  as  they  were  pledged  for  less 
than  their  value,  and  he  had  therefore  a  valuable  interest  to  pro- 
tect. Nor  could  it  be  objected,  that  the  sale  was  an  absolute 
one ;  for  the  very  form  showed  it  was  not,  and  this  must  have 
been  known  to  the  witness.  Neither  was  there  any  want  of 
consideration,  because  the  transfer  was  a  pledge,  and  the  mort- 
gagee might  be  compelled  to  pay  the  debt.     For  this  reason,  the 

(!)  Tlioni|isoii  V.  GiaVj  1  Wheal    75. 


78  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

excess  ia  value  of  the   property  over    the  debt    whs   irninalerial 
and  the  case  showed  no  fraud.(l) 

9.  Where  one  person  contracts  absolutely  with  another  to 
sell  him  ponderous  articles,  which  are  left  upon  lanH  purchased 
by  the  latter,  and  in  his  possession,  and  have  ever  since  remain- 
ed there,  in  his  power  ;  held,  this  is  a  sufficient  delivery  of  the 
articles. (2) 

10,  Marking  the  name  of  the  vendee  upon  the  articles  pur- 
chased, has  been  held  to  some  extent  a  constructive  delivery. 

n.  A  went  into  the  cellar  of  B,  and  selected  several  pipes  of 
wine,  agreeing  to  pay  a  certain  price  for  them.  The  spills  were 
then  cut  off,  and  B's  clerk  marked  A's  initials  on  the  casks,  in 
presence  of  B,  and  A  took  the  gauge  numbers.  Held,  these 
acts  amounted  to  a  delivery;  but  as  the  delivery  was  merely 
incipient,  A  might  maintain  an  action  against  B  for  non-delivery 
of  the  wine, (3) 

12.  But  under  some  circumstances,  this  act  does  not  amount 
to  a  delivery. 

13.  The  plaintiff  sold  to  the  defendant  certain  casks  of  wine 
lying  in  the  London  docks,  and  marked  them  with  the  defend- 
ant's initials,  at  his  request  and  in  his  presence  ;  but  the  terms 
of  payment  were  agreed  upon,  not  at  the  time,  but  in  a  subse- 
quent conversation,  being  a  credit  of  two  months.  Held,  the 
contract  was  not  complete  at  the  time  of  marking  the  wine,  and 
the  facts  did  not  constitute  a  sufficient  delivery  to  take  the  case 
out  of  the  Statute  of  Frauds  ;  that  the  defendant  could  not  have 
maintained  trover  for  the  goods,  if  not  delivered,  for  the  seller 
would  have  had  a  lien  upon  them  for  the  price  ;  and  consequent- 
ly that  this  action,  for  goods  sold,  did  not  ]ie.(4) 

14.  A  being  a  surety  for  B,  a  minor,  upon  a  note  which  A  af- 
terwards paid,  B  conveyed  to  him  by  a  bill  of  parcels,  one  third 
of  a  machine  owned  in  common  with  C  ;  the  bill  having  a 
memorandum  attached  to  it,  that  the  transfer  was  to  be  void  on 
payment  of  the  debt  by  B.     The  agent  of  B  went  to  the   mill 

(1)  Jewett  V.  Warren,  12  Mass.  30O. 

(2)  De  Ridder  v.  M'Knighi,  13  John.  294. 

(3)  Anderson  v.  Scot,  1  Camp.  235,  n. 

(4)  Proctor  v.  Jones,  2  Cavr.  &  P.  53;. 


Sect.    I.]  GENERAL    PRINCIPI-ES,     EXCEPTIONS,  &C.  70 

where  the  machine  was,  and  delivered  the  property  to  A,  show- 
ing him  the  machine,  and  declaring  that  he  made  delivery  of 
B's  third  part  of  it.  At  and  after  the  time  of  delivery,  one  D 
improved  the  machine  under  a  parol  lease  from  E  one  of  the 
owners,  who  acted  for  the  rest,  and  accounted  to  them  for  the 
rent.  A  claimed  no  rent,  and  E  agreed  to  indemnify  D  from 
any  such  claim.  Afterwards,  E  claimed  the  whole  property. 
The  machine  was  suhsequently  seized  upon  an  execution  against 
the  joint  owners,  and  sold  by  the  sheriflT,  notwithstanding  a  no- 
tice of  A's  title,  and  a  prohibition  of  the  sale,  one  of  the  other 
owners,  however,  denying  the  title  of  B.  In  an  action  brought 
by  A  against  the  officer,  held,  there  was  an  effectual  transfer  of 
B's  title,  there  having  been  all  the  delivery  which  under  the 
circumstances  was  possible.(l) 

15.  A  had  agreed  to  sell  live  oak  timber  to  the  United  States. 
The  plaintiff  advanced  funds  to  him,  to  be  invested  in  this  kind 
of  timber  in  Florida,  the  timber  to  be  procured,  cut  and  trans- 
ported at  A's  expense,  but  on  account  and  at  the  risk  of  the 
plaintiff,  to  the  navy  yards.  A  to  have  one  half  the  profits,  and 
the  plaintiff  the  other  half,  besides  having  the  principal  sum 
advanced,  repaid.  A  consigned  a  quantity  of  timber  to  the 
plaintiff;  the  latter  had  the  bill  of  lading,  and  indorsed  his  or- 
ders upon  it,  directing  the  ship-master,  who  was  appointed  by 
A,  to  proceed  to  the  navy-yard,  and  deliver  the  timber.  While 
be  was  doing  it,  a  creditor  of  A  caused  the  timber  to  be  attach- 
ed as  A's  property.  The  plaintiff  did  not  go  on  board  after  ar- 
rival of  the  ship,  and  before  the  attachment.  Held,  under  the 
circumstances,  the  plaintiff  had  an  authority,  coupled  with  an 
interest,  in  the  disposal  and  proceeds  of  the  property  ;  that  pos- 
session was  to  be  inferred  from  his  dealing  with  it  as  his  own  by 
indorsing  the  bill  of  lading;  and  therefore  that  he  had  a  lien  for 
his  advances,  and  might  maintain  an  action  against  the  attach- 
ing officer. (2) 

16.  Upon  a  similar  principle,  where  goods  are  wrongfully  at- 
tached, they  may  be  sold  by  the   owner,  and   no  delivery  is  ne- 


(1)  Haskell  v.  Greely,  3  Green).  425 

(2)  Rice  V.  Austin,  17  Mas?.  197, 


80  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

cessary  to  vest  an  interest  in  the  vendee.  But  as  only  a  chose  in 
action  passes,  the  vendor  may  bring  an  action  against  the  officer 
in  his  own  name,  though  for  the  vendee's  benefit. 

17.  The  property  of  A  was  attached  in  a  suit  against  B. 
While  under  attachment,  A  sold  it  to  C.  Held,  an  action 
might  be  brought  (in  the  name  of  A)  against  the  officer  for 
C's  benefit,  and  that  C,  having  purchased  merely  a  chose  in  ac- 
tion, could  not  sue  in  his  own  name.(l) 

18.  And  under  some  circumstances,  the  attaching  officer  him- 
self may  make  a  valid  delivery,  as  the  agent  of  the  vendor. 

19.  A  gave  a  bill  of  sale  of  a  vessel  without  consideration  to 
B,  and  B,  with  A's  consent,  conveyed  her  to  C,  a  creditor  of  A. 
After  the  transfer  to  C,  an  officer  who  had  before  attached  the 
vessel  on  behalf  of  other  creditors,  discharged  the  keeper,  and 
delivered  the  vessel,  lying  at  A's  wharf,  to  C.  Held,  a  valid 
delivery,  if  made  with  the  consent  and  on  account  of  A. (2) 

20.  On  the  other  hand,  where  property  sold  is  incapable  of 
delivery  at  the  time,  and  a  creditor  of  the  vendor  attaches  it  be- 
fore the  vendee  obtains  possession,  the  sale  shall  prevail  over  the 
attachment,  and  the  vendee  may  maintain  trespass. 

21.  A  assigned  to  B  among  other  things  a  chaise  and  harness, 
which  were  then  at  a  distance,  in  possession  of  C.  Before  B 
could  obtain  possession,  the  property  was  attached  by  A's  cred- 
itors.    Held,  B  might  recover  against  the  officer. (3) 

22.  A  sold  goods  to  the  plaintiff  on  Saturday  night,  and  the 
latter  used  due  diligence  to  obtain  possession  on  Sunday  ;  but 
on  the  latter  day,  a  creditor  of  A  obtained  possession  and  se- 
creted the  property,  and  on  Monday  caused  it  to  be  attached. 
Held,  the  plaintiff  might  maintain  trespass  both  against  the  offi- 
cer and  the  attaching  creditor. (4) 

23.  One  A  sold  to  the  plaintiff  a  mare,  then  being  in  the  liv- 
ery-stable of  B,  who  had  a  lien  upon  her  for  the  keeping.  Up- 
on the  day  of  sale,  both  A  and  the  plaintiff  by  letters,  duly  receiv- 
ed, informed  B  of  the  sale,  and  requested  him  to  keep  the  mare 

(1)  Holly  V.  Huggeford,   8  Pick.  73. 
(S)  Boyd  V.  Brown,  17  Pick.  453. 

(3)  Ricker  v.  Cross,  5  N.  H.  570. 

(4)  Parsons  v.  Dickinson,  11  Pick.  352. 


Sect.    I.]  GENERAL    I'RINCIPLES,    EXCEPTIONS,  &C.  81 

for  the  plaintiff.  Soon  afterwards,  the  mare  was  attached  as 
A's  property,  B  not  having  then  written  to  A  or  the  plaintiff, 
but  being  ready  to  make  delivery  to  the  latter.  B  required  pay- 
ment of  the  sum  due  him,  before  he  would  allow  the  officer  to 
make  an  attachment.  In  an  action  of  trover  by  the  plaintiff 
against  the  officer,  held,  the  above  transaction  passed  the  pro- 
perty, both  as  between  the  parties  and  in  relation  to  creditors  ; 
that  the  action  was  therefore  sustained,  and,  in  estimating  the 
damages,  the  sum  paid  by  the  officer  was  not  to  be  deducted,  be- 
ing a  claim  of  the  defendant  against  A.(l) 

24.  An  order  drawn  by  the  vendor  of  goods  upon  the  deposi- 
tary of  them,  and  delivered  to  the  vendee,  is  sufficient  to  pass 
the  property  under  the  Statute  of  Frauds,  more  especially  if 
accompanied  by  a  bill  of  parcels.(2) 

25.  Where  goods  sold  lie  at  a  wharf,  lodging  with  the  whar- 
finger a  delivery  order,  with  a  power  of  sale,  passes  the  proper- 
ty, without  re-weighing  or  re-housing  them.  Upon  the  bank- 
ruptcy of  the  vendor,  his  assignees  cannot  maintain  trover  against 
a  purchaser  from  the  first  vendee,  as  for  goods  "  in  the  order  and 
disposition"  of  the  bankrupt.(3) 

26.  The  vendor  of  malt  sent  an  order  to  the  warehouseman 
having  possession  of  it,  to  hold  it  on  account  of  the  vendee. 
The  warehouseman  gave  an  acknowledgment  in  writing  that  he 
thus  held  the  malt.  In  an  action  of  trover  brought  by  the  ven- 
dee against  the  warehouseman,  held,  it  was  no  defence,  that  ac- 
cording to  the  established  usage,  malt  must  be  re-measured  before 
it  is  sold  ;  and  that  prior  to  such  re-measurement,  the  vendee 
had  failed.  The  warehouseman  by  his  acknowledgment  attorn- 
ed to  the  vendee. (4) 

27.  A  sold  goods  to  B,  taking  his  note  at  sixty  days  for  the 
price.  B  sold  the  same  goods  to  C  and  gave  him  an  order  upon 
A  for  delivery,  which  however  was  not  immediately  presented, 
nor  A  informed  of  the  sale.     B  having  become  insolvent,  A  de- 

(1)  Tuxworlh  V.  Moore,  9  Pick.  347. 

(2)  Searle  v.  Keeves,  2  Esp.  598.  Hollingsworth  v.  Napier,  8  Caines,  182.  Plea- 
sants V.  Pendleton,  6  Rand.  473. 

(3)  Tucker  v.  Ruston,  2  C.  &  P.  86. 

(4)  Stonard  r.  Dnnkin,  2  Camp.  344. 

11 


83  DELIVERY    AND    ACCEPTANCE.  [Chap.    IIL 

posited  his  note,  together  with  the  goods,  in  the  hands  of  D,  as 
security  for  a  debt  due  to  D  from  A.  C  having  demanded  pos- 
session from  A,  who  refused  to  deliver  it,  on  account  of  B's 
bankruptcy  and  non-payment  of  the  note  ;  held,  C  might  main- 
tain trover  against  D.(l) 

28.  By  a  usage  of  trade  in  Liverpool,  the  vendor  of  goods 
was  bound  to  pay  warehouse  rent  for  two  months  from  the  time 
of  sale,  if  they  remained  so  long  in  his  possession.  The  ven- 
dor's agent,  within  this  period  after  the  sale,  gave  the  usual  de- 
livery order  to  the  vendee,  who  paid  the  price.  During  the  two 
months,  the  goods  were  distrained  for  rent,  and  the  agent  of  the 
vendee,  having  paid  the  rent  to  redeem  them,  brings  assumpsit, 
for  money  paid,  against  the  vendor.  Held,  the  property  of  the 
goods  had  vested  in  the  vendee,  and  he  must  bear  the  loss,  in 
the  same  way  as  if  they  had  been  destroyed  by  fire.  Hence, 
this  action  could  not  be  maintained. (2) 

29.  A  sold  to  B,  for  an  agreed  price,  1 19  barrels  of  flour, 
lying  in  a  certain  warehouse,  and  having  upon  them  the  brand 
of  eight  different  mills.  B  gave  a  check  for  the  whole  amount, 
and  A  gave  B  a  bill  of  parcels,  stating  the  number  of  barrels  of 
each  brand,  an  order  on  the  warehouseman,  and  a  receipt  for 
the  price.  Held,  this  was  an  executed  contract,  which  passed 
the  property  to  B  ;  that  the  warehouse,  flour  and  check  hav- 
ing all  been  destroyed  by  fire  before  delivery  of  the  flour,  the 
loss  must  fall  upon  B;   and  that  A  might  sue  for  the  price.  (3) 

30.  A,  a  manufacturer,  deposited  goods  with  B,  a  wharfinger 
at  Stockton,  to  be  shipped  to  C's  wharf  in  London,  taking  re- 
ceipts therefor.  Upon  these  receipts,  A  indorsed  orders  upon 
C  to  deliver  the  goods,  when  they  should  arrive,  to  D,  who  had 
advanced  money  upon  them.  D  sent  the  receipts  and  delivery 
orders  to  C,  and  demanded  the  goods.  C  answered,  that  the 
goods  had  not  arrived,  but  when  they  did  arrive,  they  should  be 
forwarded  to  D.  Held,  D  might  bring  trover  against  C  for  the 
goods,  who  by  his  reply  to  D's  application  assented  to  his  title. 
Nor  did  it  make  any  difference,  that  at  the  time  of  such  assent 


(1)  Hunt!  V.  Rownc,  2  Caines,  38. 

(2)  Greaves  v.  Hepke,  2  B.  &  A.  131. 
(S)  Pleasants  v.  Pendleton,  6  Rand.  473, 


Sect.    I.]  OENEItAf,    PKI.NCIPLKS,     KXCEPTIONS,   &C.  83 

the  goods  had  not  arrived.  There  was  an  attornment  lo  D, 
though  prospective  ;  like  a  promise  by  a  tenant  to  attorn,  made 
before  he  has  entered  upon  the  premises.  It  seems,  a  wharfin- 
ger's receipt  passes  the  property  in  the  goods  by  indorsement, 
like  a  bill  of  lading. (1) 

31.  Upon  the  same  principle,  where  usage  requires  a  delivery 
order  to  vest  a  title  in  the  vendee,  the  property  will  not  vest  with- 
out such  order,  notwithstanding  other  symbolical  acts  of  owner- 
ship on  the  part  of  the  purchaser.  Thus,  A  purchased  of  B 
forty-six  puncheons  of  rum  in  B's  warehouse  at  Liverpool,  and 
re-sold  them  to  C,  a  clerk  of  B,  doing  business  on  his  own  ac- 
count. A  gave  C  an  invoice,  mentioning  the  marks  and  num- 
bers of  each  puncheon,  and  took  his  acceptances  for  the  price. 
The  rum  and  the  samples  taken  remained  in  B's  warehouse.  It 
was  proved  to  be  an  invariable  usage  in  Liverpool,  upon  the 
sale  of  goods  lying  in  a  warehouse,  for  the  vendor  to  give  the 
purchaser  a  delivery  order.  C  demanded  such  orders  from  A 
in  the  present  case,  but  A  refused  them  for  all  but  two  or  three 
puncheons,  which  C  received.  The  casks  were  marked,  coop- 
ered and  gauged  by  C.  Before  maturity  of  the  bills,  C  sold 
twenty-six  puncheons  to  D,  who  paid  for  them,  and,  by  permis- 
sion of  C,  but  without  the  knowledge  of  A,  gauged  and  cooper- 
ed the  casks  in  the  warehouse,  and  marked  them  with  his  ini- 
tials. C  gave  an  invoice  to  B,  mentioning  the  marks  and  num- 
bers of  the  casks,  and  by  whom  the  rum  was  branded.  Before 
maturity  of  the  bills,  C  also  sold  eighteen  puncheons  to  two 
other  persons,  and  gave  them  similar  invoices  and  samples. 
These  persons  afterwards  obtained  such  puncheons,  upon  a  de- 
livery order  signed  by  themselves,  but  not  by  A.  They  also 
paid  C  for  the  whole.  C's  bills,  given  in  payment  for  forty-four 
puncheons,  were  dishonored.  Held,  under  these  circumstances, 
C  never  had  actual  possession,  upon  the  dishonor  of  his  ac- 
ceptances A  had  a  lien  for  the  price,  and  the  parties  who  re-pur- 
chased from  C  could  not  claim  as  against  A  the  rum  which  re- 
mained undelivered.  With  respect  to  the  acts  relied  on  to  show 
a  change  of  property  ;  the  coopering  might  have  been  done  for 

(1)   Holl  V.  Griffin,  3  Moo.  &  S«oit,  73*. 


84  DELIVERY    AND    ACCEPTANCE.  [Chap.    HI. 

the  purpose  of  ascertaining  whether  the  casks  were  in  order  j 
and  the  marking  could  have  no  peculiar  effect,  because  C  knew 
that  he  had  no  delivery  order.  He  was  the  clerk  of  B,  had  the 
management  of  his  cellar,  and  could  therefore  mark  and  gauge  at 
pleasure.  These  acts  might  have  vested  the  property  in  him,  if 
B  had  approved  of  them,  knowing  that  C  had  purchased  from 
A.  The  delivery  of  one  part  was  in  this  case  no  legal  delivery 
of  the  whole,  because  accompanied  with  an  express  refusal  to 
part  with  the  whole.  Nor  was  C's  taking  samples  a  construc- 
tive delivery  of  the  whole,  as  they  constituted  no  part  of  the 
bulk.  He  took  two  puncheons,  for  the  purpose  of  separating 
them  from  the  rest.  A'slien  was  suspended  while  the  bills  con- 
tinued to  run,  but  revived  upon  their  being  dishonored.  The 
case  was  said  to  turn  upon  two  points.  1.  Where  the  goods 
remain  in  possession  of  the  vendor,  unpaid  for,  he  may  retain 
till  payment;  if  in  possession  of  his  agent,  whether  warehouse- 
man or  carrier,  he  may  stop  them  in  transitu,  3.  The  second 
vendee  could  be  in  no  better  situation  than  the  first. (1) 

32.  Where  goods  lying  in  a  dock  are  sold,  it  seems,  a  trans- 
fer in  the  dock  books  is  a  sufficient  symbolical  delivery. (2) 

33.  Delivery  of  a  receipt  given  by  the  store-keeper  who  has 
the  custody  of  the  goods,  is  sufficient  to  pass  a  title  ;  this  being 
the  proper  documentary  evidence. (3) 

34.  In  case  of  any  sale  of  goods,  the  common  course  is  for 
the  vendor  to  deliver  the  vendee  an  invoice,  but  that  does  not 
vest  the  actual  possession.  (4) 

35.  But  where  goods  which  have  been  shipped  and  are  at  sea 
are  sold,  delivery  of  an  invoice,  with  an  assignment  of  the  goods 
indorsed  upon  it,  is  sufficient  to  pass  property. (5) 

36.  Delivery  to  a  vendee  of  the  key  of  a  warehouse  where  (he 
goods  lie,  is  a  sufficient  delivery  under  the  Statute.(6) 

37.  A  sold  goods  to  B  and  made  delivery  of  a  part  of  them, 
agreeing  also  to  deliver   the  key  of  the  shop  which  contained 

(1)  Dixon  V.  Yates,  5  Barn.  &  Ad.  313. 
(t)  Proctor  V.  Jones,  2  Carr.  &  P.  535. 

(3)  Wilkes  V.  Ferris,  5  John.  335. 

(4)  Di.Ton  V.  Yates,  5  Barn.  &  Ad.  338. 

(5)  Gardner  v.  Rowland,  2  Pick.  699. 

(6)  Wilkes  V.  Ferris,  5  John.  335. 


Sect.     I.]         GKNERAL    PRINCIPLES,    EXCEPTIONS,    &LC.  85 

the  rest  to  C,  which  was  accordingly  done,  for  the  use  of  B, 
A  afterwards  sold  the  part  which  remained  in  the  shop,  to  D, 
who  obtained  possession  of  them  by  borrowing  the  key  from 
C.  Held,  B  might  maintain  trespass  against  D,  there  having 
been  a  constructive  delivery  of  the  whole  property  to  B.(l) 

38.  So,  taking  a  lease  of  the  house  in  which  the  goods  lie,  is 
a  sufficient  delivery,  though  the  vendor  afterwards  remove  them 
to  another  building. 

39.  A  quantity  of  furniture,  being  in  a  tavern,  was  sold  ;  and 
the  vendee  took  a  lease  of  the  house,  went  there  to  live,  and 
used  it  in  common  with  the  vendor,  who  had  occupied  under  a 
previous  lease,  and  continued  to  do  so  and  to  keep  the  tavern. 
The  vendor  afterwards  removed  to  another  house,  carrying  the 
furniture  with  him,  and  continued  to  use  it  as  his  own.  Held, 
there  was  a  sufficient  delivery,  and  the  property  could  not  be  at- 
tached as  the  vendor's.  (2) 

40.  Where  a  vendee  is  in  possession,  no  delivery  is  necessa- 
ry.*(3) 

41.  The  lessee  of  a  brick-yard  and  the  brick-maker  were  joint 
owners  of  the  bricks  made  in  the  yard.  The  lessee  transferred 
his  interest  in  the  yard  and  bricks,  and  delivered  possession  to  as- 
signees, who  appointed  the  maker  their  agent  to  sell  the  property. 
He  accepted  and  acted  under  the  agency,  and  then  sold  to  the  as- 
signees all  his  interest  in  the  bricks  that  remained.  Held,  no 
delivery  was  necessary,  because  the  assignees  were  already  in 
possession. (4) 

42.  Upon  the  same  principle,  where  property  lying  in  a  yard 
is  sold,  facts  showing  a  constructive  possession  of  the  premises 

(1)  Chappel  V.  Marvin,  2  Aik.  79. 

(2)  Shumway  v.  Rutter,  8  Pick.  443. 

(3)  Chapman  v.  Searle,  3  Pick.  38.     Manton  v.  Moore,  7  T.  R.  6?. 

(4)  Macomber  v.  Parker,  13  Pick.  175. 


*  This  is  also  the  doctrine  of  the  civil  law.  "  Interdum  etiam  sine  tradilione  nuda 
voluntas  domini  sufficit  ad  rem  transferendam';  veluti  si  rem  tjuam  tibi  aliquis  commo- 
daverit  aut  locaverit  aut  apud  te  deposiierit,  postea  aut  vendiderit  tibi  aut  donaverit 
aut  dotis  nomine  dederit.  Quamvis  enim  ex  ea  causa  tibi  earn  non  tradiderit,  eo  ta- 
men  ipso  quod  patitur  tuum  esse,  statui  tibi  acquiritur  proprielaF,  perinde  ac  si  eo  no- 
mine tibi  tradita  fuisset."    Just.  Inst,  hb,  2,  tit.  I,  s.  43. 


86  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

by  the  vendee,  are  sufficient  to  vest  the  property  in  him  without 
actual  removal  of  it,  even  as  against  creditors  of  the  vendor. 

43.  Bona  ^de  sale  of  bricks  lying  in  a  yard,  with  a  lease  of 
the  yard  to  the  vendee,  the  plaintiff,  till  a  sale  and  removal  of 
them,  and  a  private  agreement  that  the  vendor  might  re-purchase 
and  sell  them  on  his  own  account,  or  sell  them  on  condition  of 
first  paying  or  securing  to  the  vendee  the  amount  of  his  claim, 
or  the  value  of  what  were  sold.  The  bricks  were  not  removed. 
There  was  no  proof  of  the  yard's  being  used  after  the  sale,  in 
making  other  bricks,  or  for  any  purpose,  except  keeping  the 
bricks  of  the  vendee  and  vendor.  Possession  was  duly  deliver- 
ed before  witnesses.  The  nature  of  bricks  is  such,  that  they 
cannot  be  moved  without  expense  and  loss ;  and  it  is  an  unusual 
proceeding  to  remove  theni  before  a  sale,  or  to  place  them  in  a 
warehouse  for  sale,  on  account  of  the  expense  and  damage  like- 
ly to  be  incurred.  Held,  the  sale  was  valid  against  creditors  of 
the  vendor.  The  yard  was  not  like  a  house  or  warehouse,  which 
might  be  constantly  occupied,  or  the  key  of  it  kept,  Ijy  the  vendee 
or  his  agent.  The  vendor  gained  no  false  credit  by  the  transac- 
tion, because  the  vendee's  possession  was  visible  and  notorious. 
The  vendor's  authority  to  sell,  under  the  agreement,  was  not 
inconsistent  with  the  vendee's  title,  for  it  involved  no  right  in 
the  former  to  interrupt  the  possession  or  divest  the  property  of 
the  latter.  The  bricks  were  not  delivered  to  the  vendor  to  sell, 
but  the  agreement  was  merely  for  a  re-purchase,  by  which  no 
creditor  or  purchaser  could  be  deceived,  because  the  vendor  had 
no  possession.  In  order  to  ascertain  the  terms  of  the  vendor's 
agency,  the  vendee  or  his  agent  must  be  applied  to.(l) 

44.  One  A  married  the  daughter  of  the  plaintiff,  being  a  widow, 
went  to  live  in  her  house,  and  assumed  the  management  of  her 
family.  A,  becoming  insolvent,  broke  up  the  establishment, 
sold  the  carriage,  discharged  the  servants,  &c.,  and  surrendered 
the  management  of  the  household  to  the  plaintiff,  who  afterwards 
exercised  the  exclusive  control,  and  paid  all  the  expenses,  of  the 
family.  The  furniture  still  continued  in  use,  except  the  plate, 
which  was  boxed  up.     The  plaiutifTlentto  A  his  notes  to  a  large 

(I)  Allen  V.  Smith,  10  Mn,s.  30R. 


Sect.    I.J         GENERAL    PRINCIPLES,    EXCEPTIONS,   &iC.  87 

amount,  payable  at  different  periods,  A  covenanting  to  pay  them 
at  maturity  ;  in  consideration  of  which  A  gave  the  plaintiff  a 
bill  of  sale  of  his  furniture  and  plate,  the  value  of  which  did 
not  equal  the  amount  of  the  debt.  Held,  the  facts  showed  a 
transfer  of  possession,  which  rendered  the  sale  valid  against 
creditors  of  A.(l) 

45.  Upon  the  same  principle,  where  an  agent  of  the  vendee  is 
in  possession,  no  delivery  is  necessary.  Thus,  A,  a  commission 
merchant,  sold  goods  of  B  to  C,  and  the  same  day  bought  them 
back  from  C  at  a  reduced  price  on  his  own  account.  Discover- 
ing that  they  were  not  of  the  quality  warranted  by  B,  A  charged 
them  back  to  B,  with  his  previous  consent.  Held,  the  property 
vested  in  B  without  delivery.  The  possession  of  the  factor  was 
that  of  the  principal. (2) 

46.  Bona  fide  indorsement  and  delivery  of  a  bill  of  lading  pass 
the  property  in  the  goods,  if  so  intended  by  the  parties;  like  a 
delivery  of  the  goods  themselves. (3) 

47.  Mere  indorsment  of  a  bill  of  lading,  without  delivery  of 
it  to  the  assignee  or  some  third  person  for  his  use  and  with  his 
assent,  does  not  pass  a  title.  But,  it  is  said,  delivery  without  in- 
dorsement, if  the  cargo  is  by  its  terms  to  be  delivered  to  a  certain 
person,  constitutes  a  valid  transfer,  subject  to  the  vendor's  right 
of  reclaiming  the  goods,  upon  non-payment,  before  actual  pos- 
session by  the  vendee. (4) 

48.  It  seems,  the  mere  putting  of  a  bill  of  lading  into  the 
Post  Office,  directed  to  the  vendee  at  a  distant  port,  is  a  suffi- 
cient delivery  to  take  precedence  of  a  subsequent  attachment. (5) 

49.  The  plaintiff,  a  trader  in  London,  made  the  following 
agreement  with  the  defendant.  "  October,  11,  1833.  Sold  to 
G  &  Son,  for  account  of  A  dt  Co.,  two  hundred  firkins  of  M 
&  Go's.  Sligo  butter,  at  71s.  6d.  per  cwt ;  free  on  board. 
Payment,  a  bill  at  two  months  from  the  date  of  landing.  To  be 
shipped  this  month,"  &c.     The  butters   were  not  shipped   un- 


(1)  Ludlov/ V.  Hurd,  19  John.  218. 

(2)  Holly  V.  Huggeford,  8  Pick.  7S. 

(3)  Newsom  v.  Thornton,  6  E.  41. 

(4)  Buffington  v.  Curtis,  15  Mass.  528.     Walter  v.  Ross,  2  Wash.  C.  C.  288. 

(5)  Buffington  v.  Curtis,  16  Mass.  628. 


88  DELIVERY     AND    ACCEPTANCE.  [Chap.    Ili. 

til  the  following  month,  but  the  defendant  waived  this  condition; 
and  accepted,  the  invoice  and  bill  of  lading,  indorsed  to  him. 
The  property  was  lost  upon  the  voyage,  and  the  plaintiff  brings 
an  action  for  goods  bargained  and  sold,  long  after  the  property 
in  the  ordinary  course  would  have  been  landed,  and  the  two 
months'  credit  expired.  Held,  the  action  might  be  maintained. 
The  invoice  and  bill  of  lading  passed  the  property  to  the  de- 
fendant. The  condition  of  the  contract  was  waived,  and  there- 
fore was  as  if  it  had  never  existed.  The  provision  for  making 
payment  by  a  bill  at  two  months  from  the  landing  merely  spe- 
cified the  date  of  payment,  but  did  not  render  the  landing  a 
condition  precedent  of  the  defendant's  liability.  Nothing  being 
left  to  complete  the  contract,  this  action  would  lie,  and,  it  seems, 
even  an  action  for  goods  sold  and  delivered.  Nor  was  it  neces- 
sary to  set  out  the  contract  as  conditional,  as  it  would  have  been 
if  made  by  deed.(l) 

60.  A,  residing  at  Providence,  being  indebted  to  B  at  Ne\V 
York,  and  B  having  demanded  payment,  A  informed  him  that 
he  (A)  had  ordered  a  balance  of  funds  in  the  West  Indies  to  bd 
sent  to  B,  and  directed  B  to  give  him  credit  therefor.  A's  agent 
shipped  the  funds,  consisting  of  doubloons,  in  a  general  ship. 
Consigned  to  B,  and  forwarded  to  B  a  bill  of  lading,  stating 
them  to  be  on  the  account  and  at  the  risk  of  A.  Before  arri- 
val of  the  doubloons,  A  became  insolvent,  and  assigned  all  his 
property  to  trustees  for  the  benefit  of  other  creditors.  Upon 
arrival  of  the  doubloons,  they  were  claimed  both  by  the  assign- 
ees and  by  B.  The  ship-master  files  a  bill  of  interpleadeh 
Held,  B  had  a  specific  lien^  not  affected  by  the  assignment.(2) 

51.  A,  residing  at  Boston,  having  ordered  certain  goods  from 
B  at  Liverpool,  B  shipped  them  in  a  general  freighting  vessel, 
which  was  consigned  to  B  and  designated  by  A.  A  bill  of  lad- 
ing was  obtained  by  B,  by  which  the  goods  were  to  be  delivered 
to  A.  B  having  withheld  the  bill  of  lading  from  A,  and  after- 
wards enclosed  it  with  an  invoice  in  a  letter  to  his,  B's  agent, 
with  directions  to  deliver  it  to  A  only  on  condition  of  his  pay- 

(1)  Alexander  v.  Gardner,  1  Scott,  630.     1  Ring.  N.  R.  671. 

(2)  Clark  v.  Mauran,  3  Paige,  373. 


Sect.    I.]  GENERAL    PniNCIPLES,    EXCEPTIONS,  &.C.  89 

ing  for  the  goods;  held,  that  after  the  above  facts,  which  seem- 
ed to  constitute  a  sale  and  constructive  delivery,  B  had  no  pow- 
er thus  to  make  the  delivery  a  conditional  one  and  deprive  A  of 
liis  title.(l) 

52.  A  shipped  goods  to  B,  according   to  the  order  of  the  lat- 
ter ;  sent  a  bill  of  lading  indorsed,  making  the  goods  delivera- 
ble  to  order   or  assigns ;   and  drew  a   bill   on  B  for   the   price. 
The  bill    was  not  accepted,  and   the  captain  of  the  ship  refused 
to  deliver  the  goods.     B  brought  an  action  o^  trover  against  the 
captain,  and  recovered  a  judgment  against  him.     Held,  A  might 
sustain  an  action  against  B  for   goods  sold  and  deliv&i'ed.     The 
delivery  was  complete,  as  between    A  and   B,  when   the   goods 
were  put  on  board   the  ship.     The  transaction  was  in   principle 
the  same,  as  if,  after  delivery  into  the  warehouse  of  the  vendee, 
the  vendor  had  retaken  the  goods.     He  would  bS  liable  for   a 
tort,  but   might  still   maintain  a  suit  for  the   price.     So   in  this 
case,  the  detention  by  the  captain,  even  though  done  by  collu- 
sion with  A,  was  no  defence   to  this   suit.     B  had   claimed   the 
goods  in  his   suit  against  the  captain,  as  his  property  ;   and  re- 
covered their   value,  as  well    as   damages  for  detention  ;    which 
claim  could  be  sustained  only  upon  the  ground  that  the  property 
passed  when  the  goods  were  shipped. (2) 

53.  Where  a  bill  of  lading  is  signed  before  the  goods  speci- 
fied therein  are  either  shipped  or  purchased,  and  goods  are  af- 
terwards shipped,  before  the  vessel  sails  upon  the  intended  voy- 
age, as  and  for  the  goods  referred  to  ;  as  against  the  shipper 
and  master,  the  bill  of  lading  operates  by  relation  nad  estoppel; 
and  the  consignee,  who  receives  it  and  accepts  drafts  upon  the 
consignment,  gains  a  good  title.(3) 

54.  Where  property  sold  is  in  possession  of  a  third  person, 
giving  notice  to  the  latter  of  the  sale  is  a  sufficient  delivery, 
more  especially  if  followed  by  some  act  on  his  part  indicating  a 
recognition  of  the  transfer.  Thus,  A  purchased  sheep  in  the 
possession  and  keeping  of  B.  He  notified  B  of  the  purchase, 
and  requested  him  to  act  for  himself  (A)  in  selecting  the  sheep, 

(1)  Stanton  v.  Eager,  16  Pick.  467. 

(2)  Groniiig  v.  Mendliam,  5  M.  &  S.  189. 

(3)  Rowley  v.  Bigelovv,  12  Pick.  307. 

12 


90  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

and  to  receive  and  keep  them  for  him,  to  which  B  assented. 
Soon  afterwards,  the  selection  was  made,  the  vendor  delivered 
the  sheep  to  B,  who  marked  them  with  the  name  of  A,  and  kept 
them  as  before,  till  attached  by  a  creditor  of  the  vendor.  Held, 
they  were  not  liable  to  attachment.(l) 

55.  A  save  to  B,  as  security,  an  absolute  bill  of  sale  of  a 
chaise  in  possession  of  C,  and  of  other  property  in  possession 
of  A  himself.  There  was  no  change  of  possession,  but  notice 
of  the  sale  was  given  to  C,  who  agreed  to  keep  the  chaise  for  B. 
Held,  there  was  a  sufficient  delivery  of  the  chaise,  as  against  A's 
creditors  ;  and  that  the  sale  was  valid  in  regard  to  this,  though 
it  should  not  be  in  regatd  to  the  rest  of  the  property,  unless 
fraud  in  fact  was  proved,  which  was  a  question  for  the  jury.(2) 

56.  In  case  of  a  sale  of  chattels,  which  are  in  custody  of  a 
third  person,  for  valuable  consideration,  with  an  order  upon  the 
latter  and  notice  thereof;  the  title  passes,  whether  he  obeys  the 
order  and  delivers  the  property,  or  claims  to  hold  it  by  some  ti- 
tle or  lien. (3) 

57.  But  merely  leaving  goods  with  a  third  person,  to  be  call- 
ed for  by  the  vendee,  is  not  of  itself  a  delivery. 

58.  The  plaintiff  left  certain  goods  with  A,  requesting  him  to 
deliver  them  to  the  defendant,  when  called  for.  They  were  not 
called  for,  but  remained  in  A's  possession.  Held,  there  was  no 
delivery  of  the  goods,. and  an  action  for  goods  sold  and  deliver- 
ed did  not  lie.(4) 

59.  Where  the  vendor  and  vendee  are  tenants  in  common,  no 
delivery  is  ngcessary  ;  the  possession  of  the  former  being  that 
of  the  latter  also. 

60.  The  plaintiff  advanced  to  one  A  the  materials  for  con- 
structing two  carding-machines,  A  agreeing  that  the  plaintiff 
should  own  a  share  in  them  proportioned  to  such  advance.  Af- 
terwards, having  sold  one  of  the  machines,  A  gives  the  plaintiffa 
writing  to  secure  him  in  the  property  and  possession  of  the  other, 
authorizing  him  to  sell  it,  re-pay  himself  for  his   advance,  and 

(1)  Barney  r.  Brown,  2  Verm.  374. 

(2)  Spaulding  v.  Austin,  2  Verm.  555. 

(3)  Plymouth  Bank  v.  Bank  of  Norfolk,  10  Pick.  459. 

(4)  Hart  t.  Tyler,  16  Pick.  171. 


Sect.    I.]  GENERAL    PRINCIPLES,    KXCEPTIONS,  &.C.  9! 

account  with  A  for  the  surplus.  The  plaintiff  thereupon  gare 
A  a  receipt  in  full  for  his  advance.  The  machine  was  in  the 
house  of  one  B,  whence  it  could  not  be  removed  without  being 
taken  in  pieces  and  injured,  and  no  formal  delivery  was  made  of 
it.  B,  having  a  claim  against  A,  attaches  the  machine  as  his. 
Held,  the  plaintiff  and  A  under  the  original  agreement  were 
tenants  in  common,  and  no  delivery  was  necessary  to  transfer 
the  share  of  the  latter  to  the  former.(l) 

61.  The  mere  act  of  extending  his  hand  over  the  properly  by 
the  vendee,  followed  by  the  vendor's  borrowing  it  for  a  particu- 
lar use,  and  immediately  taking  it  away,  has  been  held  not  to  be 
a  delivery. 

6%I.  A,  having  negotiated  with  B  to  purchase  of  him  a  yoke 
of  oxen,  extended  his  arm  over  one  of  them  in  the  act  of  mea- 
suring, and  said  he  would  pay  the  price  demanded.  B  replied 
that  he  might  have  them,  but  at  the  same  time  borrowed  them 
for  the  purpose  of  hauling  a  load  of  timber,  with  the  agreement 
to  use  them  in  no  other  way.  Held,  there  was  no  legal  delive- 
ry, neither  earnest  being  paid,  nor  a  memorandum  signed,  and 
that  no  title  had  vested  in  A.  There  was  nothing  in  the  cir- 
cumstances of  the  case,  to  show  any  departure  from  the  gene- 
ral rule,  that  payment  must  precede  delivery.  The  application 
made  by  B,  was  merely  an  intimation  that  he  was  not  then  readj 
to  part  with  the  cattle  ;  and  though  his  asking  to  borrow  them 
seemed  to  imply  that  they  were  considered  as  belonging  to  A, 
yet  this  inference  must  be  qualified  by  the  accompanying  acts 
and  declarations.  The  true  import  of  what  passed  between  the 
parties  was,  that  B  knew  the  offer  of  A  was  no  engagement  to 
receive  the  cattle  at  any  future  time,  and  a  request  that  the  bar- 
gain might  not  be  defeated  by  his  using  them,  bui  that  A  would 
accept  them  afterwards.  There  was  nothing  to  show  any  inten- 
tion of  giving  credit.  If  the  property  had  passed,  B  might  main- 
tain an  action  for  the  price  ;  the  cattle  would  have  been  in  his 
hands  at  the  risk  of  A,  and  upon  A's  death  have  vested  in  hia 
administrator  :   which  clearly  was  not  the  case.(2) 

63.  Under  some  circumstances,  there  may  be  a  legal  delivery, 

(1 )   Beaumont  v.  Cmne,  14  Mas?.  40(1- 
.$)   Philnp*  T.  Hunnewe'.".  4  G'-eenU  ;>TS, 


93  DELIVERY    AND    ACC3PTANCE.  [Chap.    III. 

though  the  vendor  retain  possession  as  before  the  sale,  and 
merely  by  some  writing  or  otherwise  recognize  its  existence 
and  validity. 

64.  Thus,  where  the  vendee  of  goods  gives  his  note  for  the 
price,  and  the  vendor  agrees  that  they  may  remain  on  his  premi- 
ses, and  afterwards  affirms  the  sale  ;  this  constitutes  a  sale  and 
delivery,  and  the  vendee  may  maintain  trover  for  the  goods. (I) 

65.  So  if  a  man  bargains  for  the  purchase  of  goods,  and  de- 
sires the  vendor  to  keep  them  in  his  possession  for  an  especial 
purpose  for  the  vendee,  and  the  vendor  accepts  the  order,  this  is 
a  sufficient  delivery. (2) 

66.  More  especially  is  this  the  law,  where  the  vendee  subse- 
quently obtains  possession,  though  without  notice  to  the  vendor. 

67.  Sale  of  cattle  ;  no  earnest  paid,  nor  memorandum  signed  ; 
the  cattle  to  remain  with  the  vendor  at  the  risk  of  the  vendee 
till  called  for.  The  vendee  having  taken  them  away  without 
notice  to  the  vendor,  held,  this  was  a  sufficient  delivery  under 
the  Statute  of  Frauds,  being  an  act  of  ownership  on  the  part  of 
the  vendee  in  confirmation  of  the  bargain. (3) 

68.  The  plaintiff,  who  kept  a  livery-stable  and  dealt  in  horses, 
asked  from  the  defendant  180  guineas  for  two.  The  defendant 
offered  a  smaller  sum,  which  was  refused,  but  afterwards  sent 
word  that  the  horses  were  his,  but  as  he  had  no  servant  nor  sta- 
ble, the  plaintiff  must  keep  them  at  livery  for  him.  The  plain- 
tiff removed  the  horses  to  another  stable.  Held,  this  last  cir- 
cumstance was  immaterial,  but  without  it  there  was  a  complete 
delivery  to  the  defendant,  and  an  action  for  goods  sold  and  de- 
livered would  lie  against  him. (4) 

69.  Goods  were  sold,  to  be  paid  for  in  thirty  days,  and  if  not 
taken  away  at  the  end  of  that  time,  warehouse  rent  to  be  paid 

(1)  Aikinson  v.  Barnes,  Lofff,  326. 

(2)  Elmore  v.  Stone,  1  Taun.  458. 

(3)  Vincent  v.  Germond,  11  John.  283. 

(4)  Elmore  v.  Stone,  1  Taun.  457.* 


*  Of  this  case  it  has  been  said,  that  it  goes  as  far  as  any  case  ought  to  go,  and  I 
think  we  ought  not  to  go  one  step  beyond  it.  I  must  say,  that  I  doubt  the  authority 
of  that  decision.     Per  Bayley,  J.,  Howe  v.  Palmer,  3  B.  &  Aid.  321. 


Sect.    I.]  GENEUAL    PRINCIPLES,    EXCEPTIONS,  &C.  93 

by  the  vendee.  Held,  the  property  vested  in  the  latter  immedi- 
ately upon  the  sale,  the  provision  for  stowage  being  solely  for 
his  benefit. (1) 

70.  The  plaintiff  advanced  money  to  one  A,  who,  as  security, 
gave  an  order  upon  the  defendant  for  a  quantity  of  malt,  and 
the  defendant  acknowledged  in  writing  that  he  held  the  property 
for  the  plaintiff.  Held,  the  defendant  was  estopped  to  deny, 
that  the  malt  belonged  to  the  plaintiff".(2) 

71.  An  upholsterer  sold  household  goods,  but  still  had  a  ser- 
vant in  the  house  where  they  were  sent,  and  the  purchaser  had 
not  taken  actual  possession.  Whether  there  was  a  complete  de- 
livery, qu.(3) 

72.  A  certificate  given  by  the  vendor  that  he  holds  the  goods 
in  storage  is  so  fully  equivalent  to  actual  delivery,  that  he  has 
no  greater  right  of  lien,  nor  is  the  sale  any  more  subject  to  be 
rescinded,  as  against  purchasers  from  the  vendee;  than  if  the 
property  had  come  into  the  manual  possession  of  the  latter. 
Thus,  the  defendant  gave  one  A,  the  vendee,  such  certificate, 
together  with  a  bill  of  parcels,  receipted,  A  giving  his  negotia- 
ble note  for  the  price.  A  offered  to  cancel  the  contract,  if  the 
defendant  would  return  the  note,  and  the  latter  agreed  so  to  do. 
The  note  was  then  in  a  bank,  having  been  discounted  for  the 
defendant.  Some  days  afterwards,  the  defendant  tendered  it  to 
A  and  requested  him  to  cancel  the  contract.  A  in  the  mean 
time  had  assigned  the  goods  to  the  plaintiffs,  his  creditors,  with 
notice  of  the  conversation  as  to  the  cancelling  of  the  agreement. 
The  plaintiffs  bring  trover  for  the  goods.  Held,  the  defendant 
was  estopped  to  deny  that  he  had  the  goods,  and  could  not  offer 
parol  evidence  to  the  contrary ;  that  the  property  had  vested  in 
A,  subject  to  no  lien  by  the  defendant  for  the  price;  that  the 
ccfntract  was  not  rescinded,  having  been  executed  ;  that  there 
was  no  re-sale  to  the  defendant,  but  at  most,  a  mere  conditional 
agreement  to  re-convey,  which  was  void  by  the  Statute  of  Frauds. 
The  facts,  without  the  aid  of  parol  evidence,  showed  a  sale  and 
delivery  by  the  defendant  to  A,  and  an  assignment  by  A  to  the 

(1)  Phillimore  v.  Barry,  1  Camp.  513. 

(2)  Stonard  v.  Dunkin,  2  Camp.  344. 

(3)  Hunt  V.  Stevens,  3  Taun.  113. 


94  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

plaintiffs.  If  the  plaintiffs  rights  had  not  intervened,  A  might 
have  re-sold  to  the  defendant  unconditionally,  taking  an  indem- 
nity against  the  note;  and  the  property  would  thereby  have  re- 
vested without  delivery,  being  already  in  the  defendant's  posses- 
sion.(l) 

73.  Contrary  to  the  general  tenor  of  the  above  cases,  it  has 
been  held  in  New  York,  that  an  agreement  with  the  vendor  re- 
specting storage,  and  delivery  by  him  of  the  export  entry  to  an 
agent  of  the  vendee,  do  not  amount  to  constructive  delivery,  or 
afford  an  indicium  of  ownership. *(2) 

74.  The  general  principle  is,  that  a  delivery  of  any  part  of 
property  sold  under  an  entire  contract,  is  a  virtual  delivery  of 
the  whole,  and  binds  the  bargain  under  the  Statute  of  Frauds, 
unless  there  be  an  agreement  or  understanding  to  separate  a 
part.(3) 

75.  In  case  of  an  entire  contract  to  deliver  a  number  of  ar- 
ticles at  a  certain  time  and  place,  the  vendee  is  not  bound  to  re- 
ceive a  part  of  them  only,  nor  to  pay  for  a  part,  though  deliver- 
ed, if  willing  to  accept  and  pay  for  the  whole.  But  if  he  accept 
a  part,  this  is  a  disaffirmance  of  the  entirety  of  the  contract, 
and  he  is  bound  to  pay  for  such  part.t(4) 

76.  Agreement  for  the  sale  of  one  hundred  sacks  of  flour.  A 
part  of  them  were  delivered,  and  payment  was  tendered  for  the 
whole.  Held,  the  vendor  could  not  maintain  an  action  for  the 
price  of  those  which  were  delivered. (5) 

77.  Where  there  is  an  entire  contract  to  deliver  a  large  quan- 

(1 )  Chapman  v.  Searle,  3  Pick.  33. 

(2)  Bailey  v.  Ogden,  3  John.  399. 

(3)  Parks  v.  Hall,  2  Pick.  206. 

(4)  Roberts  v.  Beatty,  2  Penns.  63. 

(5)  Walker  V.  Dixon,  2  Star.  281. 

*  Where  a  vendee,  after  an  o.\ecuted  sale,  leaves  the  goods  with  ihe  vendor,  he  is 
'iable  by  an  implied  assumpsit  to  pay  the  expense  of  keeping.  Roe  v.  Martin,  2  Cow 
417. 

t  Where  several  chattels  are  sold  together  for  one  entire  price,  which  is  paid,  and 
a  part  of  them  are  delivered  to  and  retained  by  the  vendee,  but  the  vendor  refuses  to 
deliver  the  rest ;  the  vendee  cannot  recover  any  part  of  the  price  as  money  paid  or 
money  had  and  received,  but  must  eue  upon  the  conlr.ict.  Miner  v.  Bradley,  2? 
Pick.  467, 


Sect.    I.]  GENERAL    PRINCIPLES,    EXCEPTIONS,   Scc.  95 

tity  of  goods,  consisting  of  distinct  parcels,  within  a  specified 
time,  and  the  seller  delivers  apart  of  them,  he  cannot  before  the 
expiration  of  the  time  sue  for  the  price  of  such  part,  because 
the  vendee  has  the  right  of  returning  them  in  case  the  contract 
is  not  fully  complied  with.  But  if  the  vendee  retains  the  part 
delivered  after  the  expiration  of  the  specified  time,  he  is  liable 
to  an  action  therefor,  though  the  remainder  be  not  delivered.  (1) 
73.  Where  the  vendee  accepts  a  part  of  the  property  sold, 
but  not  within  reasonable  time,  or  certainly  within  the  time 
agreed  upon  for  taking  the  whole,  such  acceptance  does  not 
take  the  case  out  of  the  Statute  of  Frauds.(2) 

79.  Where  the  purchaser  of  several  articles  at  the  time  of 
sale,  writes  his  name  upon  one  of  them,  intending  to  denote  his 
having  purchased  it,  and  appropriate  it  to  his  own  use,  this  is 
equivalent  to  delivery  of  that  article,  but  not  of  the  others. (3) 

80.  Under  a  contract  which  was  void  by  the  Statute  of  Frauds, 
the  defendant  was  to  have  from  the  plaintiflf  12,000  bricks  at 
the  rate  of  four  dollars  per  thousand,  to  be  received  at  the 
plaintiff's  kiln  within  one  month.  After  the  expiration  of  the 
month,  the  defendant  received  800  of  the  bricks,  informing  the 
agent  of  the  plaintiff,  who  delivered  them,  that  he  would  take 
the  remainder  on  the  following  week,  to  which  the  agent  assent- 
ed. The  defendant  did  not  call  for  the  rest  of  the  bricks,  nor  did 
the  plaintiff  separate  the  requisite  number  from  the  kiln.  Held, 
the  plaintilf  might  still  maintain  an  action  for  the  price  of  the 
12,000;  the  new  agreement  being  made  certain  by  reference 
to  the  former  one,  as  to  quantity  and  price,  and  not  within  the 
Statute  of  Frauds.  The  bargain  and  sale  was  complete  by  de- 
livery of  a  part  of  the  property.  The  vendor  was  to  do  no  fur- 
ther act,  till  the  vendee  should  call  upon  him.  Hence,  the  pro- 
perty had  vested  in  the  latter.  The  case  is  the  same  in  princi- 
ple, as  if  the  plaintiflf  had  sold,  from  a  kiln  of  100,000  bricks, 
10,000  to  one  person,  the  same  number  to  a  second,  and  the 
same  to  a  third,  and  delivered  one  brick  to  each  in  tok'en  of  the 


(1)  Oxendale  v.  Wetherell,  9  B.  &  C.   387,  8.     Waddington  v.  Oliver,  2  N.  R.  61. 

(2)  Damon  v.  Osborn,  1  Pick.  476. 
(S)  Hodgson  V.  Le  Bret,  1  Camp.2S3, 


96  DEHVERY    AND    ACCEPTANCE.  [Chap.    III. 

whole  ;  in  which  case,  the  whole  would  undoubtedly  pass  to 
the  respective  vendees. (1) 

81.  A  takes  an  assignment  of  property  from  B,  to  secure  a 
debt;  agreeing  to  sell  the  property,  and,  after  paying  himself, 
to  pay  over  the  surplus  to  B,  Having  been  paid  in  money  and 
securities,  A  verbally  agrees  to  give  up  the  goods,  and  accord- 
ingly does  give  them  up,  excepting  a  quantity  of  wine  and  vin- 
egar. The  wine  was  in  a  loft  held  by  A  under  a  lease  from  B. 
A  agrees  to  come  and  surrender  the  lease  and  give  up  the  key, 
but  fails  to  do  it ;  and  B  takes  possession  of  the  loft  and  the 
wine,  without  A's  knowledge.  Before  the  lease  and  key  are 
delivered  up,  apart  of  the  securities  fail.  Held,  the  facts  show- 
ed a  re-sale  to  B,  and  A  had  no  lien  upon  the  wine  and  vinegar, 
.because  all  the  goods  had  been  constructively  delivered,  and  the 

actual  possession  taken  of  the  wine  was  authorized  by  the  con- 
tract. No  demand  of  the  key  was  necessary,  because  A 
had  agreed  to  deliver  it ;  and  he  could  not  be  allowed  to  take 
advantage  of  his  own  wrong.(2) 

82.  The  rule  above  stated,  that  delivery  of  a  part  is  a  con- 
structive delivery  of  the  whole,  applies,  although  the  goods  are 
taken  a  few  hours  subsequent  to  the  sale.  Thus  the  plaintiff,  in 
the  forenoon,  sold  to  the  defendant  a  lot  of  logs  lying  together 
at-  the  distance  of  a  mile.  In  the  afternoon,  the  defendant  sent 
and  converted  to  his  own  use  a  part  of  the  logs.  There  was  no 
other  delivery,  nor  any  payment.  Held,  the  plaintiff  might  re- 
cover the  price  of  the  whole  quantity  sold. (3) 

83.  Where  one  contracts  for  the  sale  and  delivery  of  a  large 
quantity  of  goods  upon  their  arrival  at  a  certain  port,  and  apart 
of  them  only  arrive;  he  is  not  bound  to  deliver  such  part.  The 
vendee  is  not  bound  to  receive  a  part,  and  the  obligation  of  the 
parties  must  be  reciprocal. (4) 

84.  Under  this  head  may  properly  be  considered  the  legal  ef- 
fect of  delivering  a  sample  of  the  goods  sold.  The  general  rule 
upon  this  subject  is,  that  delivery  of  a  sample,  which  is  no  part 

(1)  Damon  v.  Osborn,  1  Pick    476. 
(9)    Parks  V.  Hall,  2  Pick.  206. 

(3)  Davis  V.  Moore,  1  Shepl.  424. 

(4)  Russel  V.  Nicoll,  3  Wend.  112. 


Sect.    I.]  GENERAL    PRINCIPLES,    EXCEPTIONS,  ScC.  97 

of  the  commodity  itself,  is  not  sufficient  to  take  a  case  out  of 
tlie  Statute.  If  it  is  a  part  of  the  commodity,  this  is  held  an 
execution  of  the  bargain,  and  dispenses  with  any  writing.  The 
distinction  is,  tliat  in  the  latter  case  the  sample  is  taken  for  the 
vendee's  own  use,  as  part  of  the  bulk,  not  merely  to  guide  his 
judgment,  but  to  give  him  possession  of  the  thing  itself.  It  is  a 
part  deliver y.{\) 

85.  The  delivery  of  a  sample,  part  of  the  commodity  itself,  is 
sufficient,  though  made  in  part  alio  intuitu.  {2) 

86.  Delivery  of  goods  sold  may  be  conditional  as  well  as  ab- 
solute. Actual  delivery  does  not  j^cr  sc  transfer  the  actual  pro- 
perty in  goods.  There  must  be  a  consummation  of  the  con- 
tract.{2) 

87.  Where  a  sale  is  made  on  condition  of  payment  upon  de- 
livery, and  the  vendor  allows  the  vendee  to  take  a  part  of  the 
goods  without  payment,  this  is  not  an  entire  waiver  of  the  con- 
dition. Hence,  the  vendee  can  maintain  no  action  for  non-de- 
livery of  the  rest. (4) 

88.  Upon  a  cash  sale  of  goods,  the  vendor  may  refuse  to  de- 
liver till  payment.  But  delivery  without  payment  is  a  waiver  of 
this  condition,  the  property  passes,  and  trover  cannot  be  sus- 
tained by  the  vendor,  though  payment  be  not  made  afterwards. 
Otherwise,  it  seems,  where  the  goods  have  been  obtained  by 
fraudulent  contrivance  of  the  vendee. (5) 

89.  So  where  a  vendee  has  agreed  to  give  notes  for  the  price, 
but  the  vendor  delivers  the  goods  without  requiring  such  notes 
or  annexing  any  condition  to  the  delivery  ;  this  is  a  waiver  of 
the  above  agreement,  and  the  property  passes. (6) 

90.  But,  it  is  said,  where  there  is  a  conditional  bargain  for 
the  sale  of  jjoods,  and  an  immediate  delivery,  under  the  expecta- 
tion that  the  stipulated  security  will  be  produced,  or  payment 
soon  made,  but  no  declaration  that  the  delivery  is  conditional  ; 
the  sale  will   not   be  held   absolute,  because  there   is  ah  under- 

(1)  Talver  v.  West,  Holt,  178.     Klinitz  v.  Surry,  5  Esp.  267. 

(2)  Hinde  v.  Whitehouse,  7  E.  670. 

(3)  Mason  v.  Lickbarrow,  1  H.  B!.  362.     17  Masf.  611. 

(4)  Payne  v.  Shadboll,  I  Camp.  427. 

(5)  Chapman  v.  Lathrop,  6  Cow.  110      S  Fuivf.  476. 

(6)  Lupin  V.  Marie,  6  Wend.  77. 

13 


98  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

Standing  that  the  vendee  will  act  honestly,  and  furnish  ihe  secu- 
rity, as  soon  as  he  can  have  opportunity  to  procure  it.  If  this 
rule  were  not  adopted,  auction  and  other  sales  must  be  much 
embarrassed.  Moreover,  no  one  is  wronged  by  it,  unless  the 
vendee  obtain  credit  upon  the  strength  of  the  goods,  or  sell 
them  to  an  ignorant  purchaser,  in  which  case,  the  vendor  would 
be  supposed  to  have  delivered  them  for  the  purpose  of  trading.(l) 

91.  It  will  be  seen  from  the  following  cases,  that  the  authori- 
ties upon  this  subject  are  somewhat  contradictory.  They  all 
agree,  however,  in  making  a  distinction  between  the  right  of  the 
vendor  to  avoid  the  sale  for  breach  of  condition,  as  against  the 
vendee  liimself,  or  those  creditors  of  the  vendee  whose  claims 
arose  before  the  sale  ;  and  creditors  who  trusted  him  after  the 
sale,  and  upon  the  credit  of  the  goods  sold. 

92.  A  ordered  from  the  plaintiff  a  piano-forte,  for  exportation, 
to  be  delivered  at  the  house  of  the  defendant,  a  packer,  and 
paid  for  in  ready  money.  The  plaintiff's  servant  delivered  the 
piano-forte  at  the  defendant's  house,  and  demanded  the  money. 
The  answer  was,  that  A  had  given  no  orders  for  that  purpose,  and 
that  the  defendant  was  from  home.  The  servant  stated,  that 
payment  was  to  be  made  before  delivery,  and,  upon  that  under- 
standing, left  the  instrument.  The  defendant  afterwards  refused 
to  restore  it,  and  shipped  it  for  A  without  payment.  In  trover 
by  the  plaintiff,  held,  the  delivery  to  the  defendant  was  only  con- 
ditional ;  he  remained  a  trustee  for  the  plaintiff,  had  no  right  to 
deliver  the  instrument  to  A  till  payment,  and  was  liable  to  this 
action. (2) 

93.  November  22,  A  applied  to  the  plaintiff  to  purchase 
goods.  Before  delivery,  a  memorandum  was  made  in  the  plain- 
tiff's book,  that  $150  must  be  paid  down,  and  the  balance  of 
the  price  in  the  following  spring.  The  same  day,  in  the  after- 
noon, a  part  of  the  goods  were  sent  to  the  wharf  appointed,  and 
on  the  day  following,  the  rest,  marked  with  the  name  of  A.  On 
the  23d,  in  the  forenoon,  A  called  for  a  bill  of  the  goods,  and 
paid  $75.  The  clerk  thereupon  referred  him  to  the  plaintiff, 
to  know  whether  the  whole  6150  would  be  claimed.     The  plain. 

(1)  Smith  V.  Dennie,  6  Pick.  266.     2  Kent,  491. 

(2)  Loeschman  v.  Williams,  4  Camp.  181. 


Sect.    I.]  GENERAL    PRINCIPLES,    EXCEPTIONS,   &C.  99 

tiff  then  came  in,  and,  during  the  conversation,  notice  was  given 
that  the  property  had  been  attached  by  a  creditor  of  A,  whose 
debt  was  incurred  before  the  sale.  The  plaintiff  thereupon  re- 
marked that  it  was  no  sale,  because  the  agreement  had  not  been 
complied  with.  A  said,  he  did  not  know  that  it  was  a  sale. 
He  also  said,  afterwards,  that  the  attachment  was  invalid,  be- 
cause the  goods  had  been  previously  sold  to  a  third  person. 
Upon  this  representation,  the  plaintiff  commenced  an  action  of 
assumpsit  against  A  for  the  price  of  the  goods,  and  caused  them 
to  be  attached  as  his.  This  suit  was  not  prosecuted,  and  sub- 
sequently, two  and  a  half  months  after  the  sale,  the  plaintiff 
brings  the  present  action  of  replevin  against  the  attaching  offi- 
cer. The  jury,  in  their  verdict  for  the  plaintiff,  found  a  condi- 
tional delivery.  Held,  this  was  a  right  verdict,  no  bill  of  par- 
cels having  been  made  out ;  that  the  long  delay  in  bringing  this 
action,  and  the  commencement  of  the  suit  for  the  price,  furnish- 
ed strong  evidence  of  a  waiver  of  the  condition,  and  would  have 
justified  a  verdict  for  the  defendant,  but  were  not  conclusive; 
that,  as  the  contract  was  at  the  first  conditional,  the  plaintiff 
was  not  bound  to  show  any  rescission  of  it,  or  to  return  the 
$75,  and  that  a  new  trial  should  not  be  granted.(l) 

94.  Sale  on  credit,  the  vendee  agreeing  to  give  certain  bills 
for  the  price.  The  goods  were  shipped  by  his  order,  and  no  ob- 
jection made  by  the  vendor,  that  the  condition  was  not  complied 
with.  Held,  the  property  was  liable  to  attachment  by  the  ven- 
dee's creditors. (2) 

95.  The  plaintiff  sold  goods  to  A,  on  condition  of  his  furnish- 
ing a  surety  for  the  price.  The  captain  of  A's  vessel,  in  which 
the  goods  were  to  be  carried,  afterwards  called  on  the  plaintiff, 
and  inquired  whether  he  had  goods  to  be  forwarded  to  A.  The 
plaintiff  replied  that  he  had,  and  they  would  be  ready  when  sent 
for.  They  were  accordingly  delivered  to  the  vendee's  order, 
nothing  being  said  respecting  security,  either  to  the  captain  or 
the  drayman.  While  the  goods  were  at  the  wharf,  a  part  having 
been  put  on  board  the  vessel,  the  plaintiff  went  to  the  wharf,  and 
told  the  captain  that  the  goods  should   not  be  laden  till  security 

(1)  Marsloiiv,  Baldwin,  17  Masi.  606. 

(2)  Carloton  v.  Sunnier,  4  Pick.  516.  ^ 


100  DKI.IVERY     AND     ACCEPTANCF..  [Chap.     III. 

was  furnished,  and  that  until  then  he  should  consider  them  as 
his  property.  Held,  the  captain  was  the  agent  of  the  vendee, 
who  was  therefore  bound  by  his  receiving  the  goods,  and  there- 
by assenting  to  the  plaintiff's  declarations  at  the  time  ;  and  that 
the  plaintiff  should  hold  the  property,  against  creditors  whose 
claims  accrued  before  the  vendee  came  into  possession.  It 
would  be  otherwise  with  regard  to  creditors  who  became  such 
after  his  possession,  and  in  consequence  of  a  false  credit  there- 
by gained ;  or  bona  fide  purchasers  for  valuable  consideration 
from  the  vendee.(l) 

96.  Goods  were  sold,  on  condition  of  the  vendee's  giving  a 
note  with  a  sufficient  indorser  for  the  price.  The  property  was 
taken  by  the  vendee,  without  objection  from  the  plaintiff,  the 
vendor,  the  clerk  of  the  latter  telling  him,  that  if  the  indorser  nam- 
ed were  not  satisfactory,  another  one  must  be  procured.  The  per- 
son named  was  rejected,  and  no  other  obtained.  Held,  the  ven- 
dee gained  no  title  to  the  goods;  that  no  express  declaration  of 
conditional  delivery  was  necessary,  provided  such  appeared  to  be 
the  understanding  of  the  parties.* (2) 

97.  The  plaintiff  sold  personal  property,  on  condition  of  the 
vendee's  giving  an  indorsed  note  for  the  price.  Delivery  was 
made  without  express  reference  to  the  condition  ;  the  vendee  kept 
the  goods  eight  days,  and  they  were  then  attached  by  his  credi- 
tors, (whether  they  were  creditors  prior  or  subsequent  to  his  ob- 
taining the  property,  qu.)  the  plaintiff,  in  the  mean  time,  having 
claimed  neither  the  note   nor  the  property,  a  neglect,  of  which 

(1)  Hussey  v.  Thornton,  4  Mass.  405. 

(2)  Whitwell  V.  Vincent,  4  Pick.  449. 

*  In  the  same  case  it  appeared,  that  the  vendee  sold  the  goods  to  one  C,  taking  C's 
negotiable  nolo  for  the  |)rice,and  transferred  this  note  by  way  of  security  to  the  defend- 
ant, a  creditor,  who  had  notice  of  the  facts.  The  creditor,  upon  demand  of  the  plain- 
tiff, refused  to  deliver  him  the  note.  Held,  while  the  note  remained  unpaid  in  the 
creditor's  hands,  the  plaintift'could  not  maintain  assumpsit  against  him  for  the  amount, 
because  by  bringing  the  action  ho  affirmed  the  original  sale.  The  first  vendee  having 
re-sold  the  goods,  taking  a  negotiable  note,  the  plaintiff  might  waive  the  tort  and  bring 
assu7n])sit  against  him  for  the  proceeds.  But  the  creditor  had  no  concern  with  the 
sale  by  the  first  purchaser.  Ho  only  took  the  note  as  security.  No  action  would 
lie  against  him  without  a  demand,  and,  after  demand,  none  hul  trover.  If  he  had  sold 
the  note,  an  J  if  the  note  belonged  to  the  plaintiff,  assumpsit  would  lie.     lb. 


Sect.    I]         GENERAL    PRINCIPLES,    EXCEPTIONS,    &C.  101 

no  explanation  was  given  upon  the  trial.  Held,  these  facts 
showed  a  waiver  of  the  condition  ;  that  the  attachment  must 
prevail ;  and  a  verdict  to  the  contrary  be  set  aside  as  against 
evidence.  The  vendor  might  have  insisted  upon  the  condition 
one  day  after  the  sale,  or  two  days,  or  any  greater  number,  if 
the  delay  were  satisfactorily  explained  ;  and  the  question  of  rea- 
sonable time  is  for  the  jury. (I) 

98.  Where  there  is  a  contract  for  a  sale  in  futuro  or  on  per- 
formance of  a  condition,  and  a  further  stipulation  that  in  the 
mean  time  the  vendee  shall  have  possession  for  a  particular  pur- 
pose, and  he  takes  possession  accordingly  ;  the  sale  is  not  exe- 
cuted, nor  the  property  changed,  till  the  act  is  done,  or  the  con- 
dition performed. 

99.  Thus  the  plaintiff,  in  the  month  of  May,  agreed  in  writ- 
ing to  sell  to  one  A,  on  or  before  September  1,  a  brick-pressing 
machine  for  $200,  lo  be  paid  on  delivery,  and  that  A  might  use 
it  till  that  time.  A  agreed  to  pay  the  plaintiff  $200  on  or  be- 
fore the  time  mentioned;  and,  in  consideration  of  the  making 
and  delivery  of  the  machine,  gave  the  plaintiff  his  negotiable 
note,  of  even  date  with  the  agreement,  for  $200,  payable  on  or 
before  September  1,  with  interest  from  date,  unless  paid  at  the 
time.  Each  party  bound  himself  to  performance  under  a  penal- 
ty. A  possessed  and  used  the  machine  from  a  time  previous  lo 
September  1,  till  the  following  February,  when  it  was  attached 
by  one  of  his  creditors,  the  note  having  been  only  in  part  paid. 
Held,  no  title  had  vested  in  A.  The  giving  of  the  note  was  on- 
ly 'prima  facie  evidence  of  payment,  liable  to  be  rebutted  by  con- 
trary proofs,  which  were  furnished  by  the  facts  of  the  case.  The 
note  was  given  for  the  money  ;  and  the  money  was  to  be  paid 
on  delivery  of  the  machine  ;  of  course  the  note  was  to  be  paid 
upon  such  delivery.  Nor  did  it  make  any  difference,  that  the 
contract  provided  for  no  return  of  the  article  ;  because  it  was 
expected  that  the  note  would  be  paid,  and,  if  not,  the  title  would 
re-vest  by  operation  of  law.*(2) 

(1 )  Smith  V.  Dennie,  6  Pick.  262. 

(2)  Reed  v.  Upton,  10  Pick.  524.     (See  9  lb.  156.) 


*  Sale  and  delivery  of  a  wagon,  on  coiidilion  that  the  vendee  shall  take  and  use  it, 


102  DELIVERY    AND    ACCEPTANCE,  [Chap.    III. 

100.  When  goods  sold  are  to  be  delivered  at  a  distance  from 
the  vendor,  and  no  charge  is  made  by  him  for  the  transporta- 
tion ;  they  become  the  property  of  the  purchaser,  as  soon  as  for- 
warded by  tlie  vendor.(l) 

101.  In  case  of  an  order  to  send  goods  by  a  carrier,  without 
naming  any  particular  one,  delivery  to  a  carrier  is  in  law  deliv- 
ery to  the  vendee.  He  only  can  sue  for  any  injury  to  the  goods, 
and  they  are  at  his  risk.  The  only  remaining  right  of  the  ven- 
dor is  that  of  stoppage  in  transitu.  [2) 

102.  It  seems,  a  delivery,  by  the  order  of  a  purchaser,  to  a 
particular  stage-coach,  to  be  sent  direct,  or  left  till  called  for,  is 
a  delivery  to  the  party.  So  where  there  is  a  general  order  for 
carriage  of  the  goods  to  a  certain  place,  and  the  conveyance 
adopted  is  the  only  one  existing,  or  the  usual  one  ;  or  that  by 
which  other  goods  have  been  previously  sent  by  the  same  ven- 
dor ;  or  where  the  vendee  assents  to  the  mode  adopted,  upon 
being  informed  of  it.  In  all  these  cases,  the  goods  are  at  the 
risk  of  the  vendee  during  the  passage,  and  an  action  lies  for 
goods  sold  and  delivered.  The  carrier  is  the  vendee's  agent  to 
receive  and  accept  the  goods. (3) 

103.  Where  a  merchant  in  the  city  is  authorized  by  his  cor- 
respondence and  course  of  dealing  with  one  in  the  country  to 
send  him  goods  without  a  special  order,  delivery  to  a  carrier, 
though  others  are  delivered  at  the  same  time,  for  which  a  spe- 
cial order  was  sent,  vests  the  property  in  the  consignee ;  and,  it 
seems,  the  vendor  cannot  maintain  an  action  against  the  carrier 
for  losing  the  goods. (4) 

(1)  Fragano  v.  Long,  4  B.  &  C.  223. 

(2)  Dutton  V.  Solomonson,  3  B.  &  P.  682. 

(3)  Whiting  v.  Fanand,  1  Conn.  60.     Per  Garrow,  B.     Anderson  v.   Hodgson,  5 
Price,  635.    Valo  v.  B.iyle,  Cowp.  29 1.     Hart  v.  Sattley,  3  Camp.  528, 

(4)  Morberger  v.  Hickenberg,  13  S.  &  R.  26. 

and  become  the  owner  of  it  upon  payment  of  the  price  ;  and,  in  case  he  docs  not  make 
such  payment,  then  to  pay  for  the  use  of  the  wagon.  Held,  the  vendee  stood  as  lessee 
of  the  property,  till  the  vendor  demanded  cither  the  wagon  or  the  price.  Hence  the  ven- 
dor could  not,  without  a  previous  demand,  bring  trover  against  an  officer  who  had  at- 
tached and  sold  the  wagon  as  the  vendee's  properly.  Fairbank  v.  Phelps,  22  Pick. 
535.  In  the  same  case,  the  vendor  having  after  the  sale  demanded  payment,  but  sub- 
sequently received  a  part  of  the  ))rico ;  held,  he  thus  impliedly  waived  his  demand 
for  further  payment  at  ihe  timL',  and  confirmed  the  sale  ."subject  to  the  condition.     lb. 


Sect.    I.]  GENERAL    PRINCIPI-ES,    EXCEPTIONS,   &C.  103 

104.  A,  residing  in  Wales,  ordered  goods  from  the  traveler 
of  B,  residing  in  London.  No  method  of  transportation  was 
prescribed.  Held,  it  should  be  presumed  that  they  were  to  be 
sent  in  the  most  usual  and  convenient  way,  and  therefore,  upon 
delivery  to  a  carrier  in  London,  a  cause  of  action  for  the  price 
arose  there.(l) 

105.  Where  goods  are  purchased,  selected,  boxed,  the 
name  and  residence  of  the  vendee  marked  upon  them,  and  put 
on  board  a  vessel  appointed  by  the  vendee,  and  at  his  expense  and 
risk,  to  be  forwarded  to  him  ;  the  property  in  the  goods  passes 
to  the  vendee,  although  an  invoice  be  not  delivered,  nor  securi- 
ty given  for  the  price,  and  though  the  receipt  given  by  the  mas- 
ter of  the  vessel  to  the  vendor  still  remain  in  his  hands  ;  no 
agreement  having  been  made  that  ihe  goods  should  be  retained 
till  security  was  given,  and  the  receipt  being  a  mere  voucher 
showing  that  the  goods  have  been  forwarded  according  to  order, 
and  being  given  after  delivery,  consequently  not  capable  of  con- 
trolling its  efrect.(2) 

106.  A,  a  merchant  at  Naples,  gave  an  order  to  B  at  Birming- 
ham, to  send  him  certain  goods  upon  insurance  being  effected  ; 
the  terms,  three  months'  credit  from  the  time  of  arrival.  B 
marked  the  goods  with  A's  initials,  sent  them  by  canal  to  Liver- 
pool, and  effected  insurance  upon  them,  declaring  the  interest  to 
be  in  A.  At  Liverpool,  the  goods  were  delivered  to  the  owner 
of  a  ship  bound  to  Naples,  and  were  damaged  through  his  neg- 
ligence. Held,  the  property  in  the  goods  vested  in  A,  when 
they  were  forwarded  from  Birmingham,  and  that  their  arrival  at 
Naples  was  not  a  condition  of  his  liability  to  pay.  Hence,  in 
an  action  brought  by  A  against  the  ship-owner,  judgment  was 
rendered  for  the  plaintiff.  (3) 

107.  In  June  and  July  1830,  A  ordered  a  quantity  of  corn 
from  B  in  Russia,  directing  him  to  draw  on  C  for  the  price,  A 
chartered  a  ship  from  C,  to  transport  the  cargo,  July  28,  A 
countermanded  his  order.  August  8,  B  informed  A,  that  he 
had  purchased   a  cargo  for  the  ship,  and  would  send   it  as  soon 

(1)  Copcland  v,  Lewis,  2  Star.  33. 

(2)  People  V.  Haynes,  14  Wend,  546. 

(3)  Fragano  v.  Long,  4  B,  &:  C.  219. 


104  DELIVERY    AND    ACCEPTANCE,  [Cliap.    III. 

as  possible,  directed  to  the  care  of  C,  hoping  he  would  approve 
this  course  notwithstanding  his  having  countermanded  the  order. 
The  corn  was  shipped,  and  a  letter  written,  informing  A  of  it, 
and  that  B  had  sent  an  indorsed  bill  of  lading  to  C,  and  had 
drawn  upon  C  for  a  part  of  the  price,  and  on  A  for  the  balance. 
B  enclosed  an  unindorsed  bill  of  lading  to  A,  together  with  an 
invoice,  representing  the  corn  as  bought  for  his  (A's)  order  and 
on  his  account.  The  bills  of  exchange  enclosed  in  this  letter 
were  dishonored.  B's  agent  then  delivered  the  indorsed  bill  of 
lading  to  C.  Oct.  2,  A  renewed  his  countermand  of  the  order. 
November  24,  the  agent  of  B  notified  the  agent  of  A,  that  he 
should  retain  the  whole  cargo  for  B.  A  afterwards  applied  for 
the  corn,  and  the  captain  delivered  it  to  his  order,  instead  of  de- 
livering it  to  C,  conformably  to  the  bill  of  lading.  For  this  act 
of  the  captain,  B  brings  a  suit  against  D,  the  ship  owner.  Held, 
the  property  vested  in  A,  upon  shipment  of  the  goods,  condi- 
tioned upon  acceptance  of  the  bills  of  exchange,  which  not  be- 
ing accepted,  the  property  never  vested,  and  that  B  should  re- 
cover, not  mere  nominal  damages,  but  the  value  of  the  cargo, 
at  the  time  of  delivery  to  A.(l) 

108.  A  consigned  goods  to  B  abroad,  ordered  a  return  cargo, 
and  .sent  his  own  ship  to  bring  it  back.  The  return  cargo  was 
delivered  to  the  captain  of  A's  vessel,  B  stating  it  to  be  on  A's 
account,  as  if  his  own  property,  and  ordering  that  it  be  deliver- 
ed to  him.  The  return  cargo  exceeding  in  value  that  sent  by 
A,  B  drew  upon  him  for  the  balance,  sent  the  bills  to  his  agent, 
with  a  blank  bill  of  lading,  and  requested  the  agent,  in  case  of 
non-acceptance  by  A,  to  indorse  the  bill  of  lading  to  C.  The 
bills  not  being  accepted,  the  agent  accordingly  indorsed  the  bill 
of  lading  to  C.  Upon  arrival  of  the  ship,  C  demanded  the  car- 
go from  the  captain,  but  he  delivered  it  to  A,  who  deposited  it 
with  D.  B  gave  notice  to  D  to  hold  the  goods  for  him,  and  D 
consequently  refused  to  re-deliver  them  to  A.  A  brings  an  ac- 
tion of  trover  against  D.  Held,  though  the  delivery  of  the  car- 
go to  the  captain  might  have  been  conditional  upon  the  accep- 
tance of  the  bills  of  exchange,  it  was  in  fact  absolute,  and  vest- 

(1)  Brandt  V.  Bowlby,  2  Barn.  &.  Ad.  932. 


Sect.    I.]  GENERAL    PRINCIPLES,    EXCEPTIONS,  &C.  105 

ed  the  property  in  A  ;  but  that  A,  having  got  possession  under 
a  claim  of  property  in  the  goods,  could  not  have  retained  them 
for  payment  of  freight.     Judgment  for  the  plaintiff.(l) 

109.  One  B  agreed  to  sell  the  plaintiff,  by  bought  and  sold 
notes,  from  500  to  700  barrels  of  oats,  to  be  shipped  by  one  J 
at  Y  and  delivered  at  P.  Soon  afterwards,  B  wrote  to  the  plain- 
tiff, that  room  had  been  engaged  in  the  G  Packet  for  about  600 
barrels  on  the  defendant's  account.  The  next  day,  the  plaintiff 
sent  instructions  to  his  agent  in  London,  to  effect  insurance  for 
.£400,  upon  oats  sent  per  the  G  packet  from  Y  to  Southampton 
and  P.  J  shipped  4^6  barrels  in  compliance  with  the  above 
agreement,  in  the  Q  packet  for  Southampton,  and  sent  a  bill 
of  ladinor  with  a  general  indorsement  to  J's  agent.  The  plain- 
tiff insisting  upon  the  vessel's  going  round  to  P,  B  sold  the  oats 
to  C.  The  G  packet  having  been  lost,  and  the  policy  subse- 
quently transferred  by  the  plaintiff  to  B  ;  held,  the  plaintiff  at  the 
time  of  effecting  the  policy  had  an  interest  in  the  oats  shipped 
on  board  the  G  packet,  and  therefore  the  insurers  were  liable, 
though  the  ownership  was  subsequently  changed.  No  specific 
parcel  of  oats  passed  by  the  bought  and  sold  notes,  but  B's  let- 
ter to  the  plaintiff  was  an  unequivocal  appropriation  of  the  oats 
shipped  in  the  packet,  and  the  instructions  for  insurance  given 
by  the  plaintiff  amounted  to  an  adoption  on  his  part  of  such  ap- 
propriation. Concealment  of  the  fact,  that  the  packet  was  not 
bound  to  P,  could  not  divest  the  plaintiff's  property.  He 
had  the  right  to  demand  of  B,  either  that  the  packet  should 
come  to  P,  or  the  oats  be  sent  in  some  other  way.  The  plain- 
tiff insisted  upon  having  these  particular  oats,  and  thereby  ac- 
quired a  legal  interest  in  them. (2) 

110.  A  ordered  certain  goods  from  the  plaintiff,  to  be  sent  to 
a  particular  quay  and  left  till  called  for,  but  named  no  particular 
carrier.  It  was  not  proved  that  A  had  received  and  accepted 
the  goods,  though  they  were  sent  according  to  order.  A  agreed 
to  pay  for  the  carriage.  In  an  action  for  goods  sold  and  deliv- 
ered, the  plaintiff  having  been  nonsuited,  held  there  was  no  suf- 
ficient evidence   in   his  favor  to  justify  the  Court  in  taking  off 

(1)  Ogle  V.  Atkinson,  5  Taun.  739.     1  Maisli.  323. 

(2)  Sparkus  v.  Marshall,  3  Scott,  17'i. 

14 


106  DKLIVERY    AND    ACCEPTANCE.  [Chap.    III. 

the  nonsuit.     A's  agreement  to  pay  for  the  carriage  was  held  to 
be  merely  a  part  of  the  consideration  and  price  of  the  goods.(l) 


Section    II. — necessity    of    delivery    in    relation    to 

CREDITORS,  &-C. 

1.  Thegeneral  subject  o^  fraudulent  sales  will  be  considered 
hereafter,  in  treating  of  the  circumstances  which  render  a  sale 
of  personal  property  void  or  voidable.  It  is  proposed  in  the 
present  connection,  merely  to  speak  of  the  necessity  of  clclivcri/, 
or  the  effect  of  non-delivery,  in  relation  to  creditors  of  the  ven- 
dor. The  general  rule  of  law  is,  as  was  stated  in  the  first  chap- 
ter, (pages  1,  2),  that  delivery  is  not  necessary  to  complete  the 
contract  of  sale,  as  hctioccn  the  parties  ;  but  that  it  is  necessary 
to  avoid  the  effect  of  a  subsequent  sale  by  the  vendee,  or  seizure 
by  his  creditors.  The  reason  of  the  rule  is,  as  stated  in  a  very 
early  and  leading  case, (2)  that  where  the  donor  continues  in 
possession  and  uses  the  goods  as  his  own  ;  by  reason  thereof  he 
trades  and  trafficks  with  others,  and  defrauds  and  deceives  them  ; 
and  further,  that  such  possession  is  evidence  of  a  ti-ust  for  the 
benefit  of  the  donor,  and  "  fraud  is  always  apparelled  and  clad 
with  a  trust,  and  a  trust  is  the  covert  of  fraud."  In  another 
case  it  is  said,  the  retaining  possession  of  property  sold  indi- 
cates a  fictitious  transaction  ;  1.  Because  it  is  inconsistent  to 
buy  and  not  take  possession  of  an  article ;  2.  Because  the  ven- 
dor hereby  gains  a  false  credit.  (3)* 

(1)  Anderson  v.  Hodgson,  5  Price,  6S0. 
^2)  Twyne's  case,  3  Co.  80.     (1  Burr.  482.) 
(3)  Ludlow  V.  Kurd,  19  John.  218. 

*  Although  the  general  princi|jles  of  the  common  law  avoid  all  fraudulent  contracts, 
the  law  oi  fraudulent  conveyance  is  founded  chiefly  upon  an  early  English  Statute — 
13  Eliz.  ch.  5,  which  will  be  more  particularly  referred  to  hereafter.  The  provision  in 
another  important  English  Statute,  (that  of  James),  that  whore  the  "order  and  dispo- 
sition" of  property  sold  remains  with  the  vendor,  he  shall  be  regarded  as  still  the  own- 
er, is  a  part  of  t/)€  bankrupt  system,  and  not  applied  to  other  cases,  even  in  England  ; 
nor,  in  any  case  in  Massachusetts,  (or  probably  other  states.)  Shumway  v.  Rultcr,  S 
Pick.  447. 


Sect.    II.]  NECESSITY    OF    DELIVERY,    &,C.  107 

2.  The  construction  given  to  this  doctrine  in  some  cases  has 
been,  that  continued  possession  by  the  vendor  is  per  se  fraudu- 
lent, or  conclusive  evidence  of  fraud,  against  creditors.  But  it 
seems  to  be  now  well  settled  in  England,  and  for  the  most  part 
in  this  country,  that  such  possession  is  a  mere  badge  of  fraud, 
or  a  circumstance  tending  to  show  mala  fides ,  the  effect  of  which 
may  be  rebutted  by  other  evidence. 

3.  The  cases  upon  this  subject  to  be  found  in  the  books  are 
very  numerous,  but,  as  they  all  tend  to  one  and  the  same  point, 
with  few  variations  or  modifications  arising  from  specific  cir- 
cumstances, a  few  only  will  be  cited  at  length.  Some  relate  to 
absolute,  and  others  to  conditional,  sales;  and  in  general  it  is  to 
be  observed,  that  while  in  regard  to  the  former,  the  form  of  the 
instrument  implies  an  immediate  taking  of  possession  by  the 
vendee,  and  the  law  therefore  requires  some  extrinsic  explana- 
tion of  his  failure  to  do  so  ;  a  mere  mortgage  or  conditional 
sale*  imports,  prima  facie,  that  the  vendor  may  keep  possession 
till  breach  of  condition,  and  consequently  his  continued  posses- 
sion raises  no  presumption  of  fraud.  Upon  the  same  principle, 
where  there  is  an  express  agreement  in  the  instrument,  whether 
absolute  or  conditional,  that  the  vendor  shall  keep  possession,  or 
a  lease  to  him  from  the  vendee  ;  as  such  possession  thereby  be- 
comes consistent  with  the  terms  of  the  contract,  the  law  does 
not  consider  it  fraudulent. 

4.  A,  being  indebted  to  both  the  plaintiff  and  the  defendant, 
March  27,  offered  the  defendant  a  bill  of  sale  of  his  personal 
property,  including  furniture  and  stock  in  trade,  as  security. 
The  defendant  consenting  to  accept  such  transfer,  only  on  con- 
dition that  he  might  take  possession  and  njake  sale  of  the  pro- 
perty, after  fourteen  days,  in  case  of  non-payment ;   A  agreed  to 


*  In  Massachusetts,  no  mortgage  of  personal  property  is  valid,  except  as  between 
the  parlies  themselves,  unless  the  mortgagee  take  and  retain  possession,'or  the  mort- 
gage be  recorded  by  the  clerk  of  the  town  where  the  mortgagor  resides  at  the  time  of 
making  it.  A  similar  provision  was  made  in  North  Carolina  in  1830.  So  in  New- 
York,  the  like  rule  prevails.  Also  in  Kentucky  (1831),  New  Hampshire  (1332),  Geor- 
gia, (1827),  Maryland,  and  probably  othor  states.  Mass.  Rev.  St.  ch.  74,  s  5  2  N- 
y.  Rev.  St.  136,  s.  5. 


108  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

this  proposal,  made  a  bill  of  sale,  and  delivered  a  corkscrew  in 
token  of  possession  of  the  whole  property,  but  continued  in  pos- 
session as  before,  April  17th,  A  died  intestate,  and  the  next 
day  the  defendant  took  possession  of  the  goods  and  sold  them. 
No  letters  of  administration  were  taken  out  by  any  one.  The 
plaintiff  brings  an  action  against  the  defendant  as  executor  de 
son  tort,  and  the  question  thereupon  arose  whether  the  bill  of 
sale  was  valid.  Held,  inasmuch  as  it  was  to  take  effect  immedi- 
ately and  not  infutttro,  the  possession  was  inconsistent  with  the 
writing,  and  the  latter  therefore  void.(l) 

5.  Certain  household  goods  were  conveyed  to  the  trustees  of 
a  marriage  settlement,  but  the  settler  remained  in  possession. 
Held,  such  possession  was  consistent  with  the  nature  and  pur- 
pose of  the  deed,  and  did  not  therefore  avoid  it  as  against  a 
creditor. (2) 

6.  A  sold  furniture  to  B,  which  was  contained  in  a  house  oc- 
cupied by  A.  B  took  a  lease  of  the  house  from  the  owner,  but 
received  no  possession  of  the  furniture,  and  made  no  agreement 
that  A  should  continue  to  use  it.  A  afterwards  removed  to 
another  place,  took  the  furniture  with  him,  and  made  additions 
to  it  of  new  articles.  The  consideration  of  the  sale  was,  that 
B  paid  the  debt  due  from  A  to  a  creditor  who  attached  the  fur- 
niture. Held,  the  transfer  was  void  against  A's  creditors  for 
want  of  delivery. (3) 

7.  A  consigned  to  B  a  quantity  of  tobacco,  to  be  sold,  and 
the  proceeds  applied   in  payment  of  a  debt  due  B.     After  arri- 

(1)  Edwards  v.  Harben  *  2  T.  R.  587.  594  n.     (6  E.  257.    5  Taun.  212.) 

(2)  Cadogan  v.  Kennet,  Cowp.  432.     (3  T.  R.  618.  620  n.) 

(3)  Shumway  v.  Rutter,  7  Pick.  66. 

*  It  is  said,  that  the  case  of  Edwards  v.  Harben  has  been  frequently  ruferred  to, 
and  acted  upon  as  good  law  in  subsequent  cases;  but  in  a  very  late  case,  Lord  Chief 
Justice  Dallas  stated,  that  it  had  b«en  often  dissented  from  ;  and  Mr.  Justice  Park 
said,  that  doubts  had  arisen  with  respect  to  the  extent  of  the  doctrine  there  laid  down. 
On  the  other  hand,  the  case  is  corroborated  by  the  assent  and  support  of  Mr.  Justice 
Lawrence.  And  it  is  said  to  have  established  the  principle,  never  having  been  ques- 
tioned, that  if  a  conveyance  of  chattels  is  conditional,  or  provides  that  the  vendor  may 
retain  possession,  such  possession  is  not  fraudulent  against  creditors.  Long  on  Sales, 
112.     7  Bing.  583.     1  Brod.  &  B.  511.     1  Taun.  382 


Sect.    II.]  NECESSITY    OF    DELIVERY,    &C.  109 

val  at  the  port  of  destination,  but  before  any  possession  taken  by 
B,  the  creditors  of  A  seized  the  property.  Held,  by  the  House 
of  Lords,  (reversing  the  judgment  of  the  Lord  Ordinary  and 
Court  of  Sessions,)  that  the  title  of  B  should  prevail  over  that  of 
A's  creditors. (1) 

8.  A  leased  to  B  a  farm  and  cattle,  under  the  agreement  that 
B  should  deliver  him  one  half  the  produce  and  one  half  the  in- 
crease of  the  cattle,  and,  at  the  end  of  the  term,  cattle  of  equiv- 
alent value.  B  remained  on  the  farm  several  years,  became  a 
debtor  to  A,  and  in  payment  of  the  debt  sold  A  all  his  interest 
in  the  cattle,  and  agreed  to  manage  the  farm  as  A's  servant. 
This  last  sale  was  a  secret  transaction,  B  remaining  as  he  was 
before,  in  order  to  prevent  any  alarm  on  the  part  of  his  credi- 
tors.    Held,  as  to  them  the  sale  was  void. (2) 

9.  A,  having  in  the  spring  rented  a  farm  from  B  for  the  en- 
suing season,  let  the  growing  grass  to  C,  to  cut  and  make  hay, 
allowing  him  one  half  for  his  labor.  C,  having  deposited  most 
of  the  hay  in  a  barn  upon  the  land,  purchased  A's  half  of  it, 
but  left  it  in  the  barn.  The  farm  was  afterwards  hired  by  D, 
who  moved  into  the  house  in  the  ensuing  autumn.  A  remained 
on  the  premises  till  the  next  spring,  keeping  a  cow  in  the  barn 
through  the  winter.  In  January,  the  hay  was  taken  and  sold 
on  an^execution  against  A,  and  C  brings  an  action  to  recover 
damages  for  this  taking.  Held,  he  could  not  recover,  the  sale 
being°void  against  creditors,  for  want  of  a  change  of  posses- 
sion.(3) 

10.  A,  occupying  a  farm  of  the  plaintiff  under  a  lease,  gave 
the  plaintiff"  a  bill  of  sale  of  certain  cattle,  and  delivered  them 
upon  the  farm,  in  payment  of  a  part  of  the  preceding,  and  the 
whole  of  the  following  year's  rent.  A  to  have  possession  of  a 
part  of  the  cattle,  use  them  for  working  on  the  farm,  and  sup- 
port them,  allowing  the  plaintiff  also  to  use  them,  whenever  he 
(A)  had  no  occasion  for  their  services.     The  rest  of  the  cattle 

(1)  Hastie  V.  Arthur,  2  Bell's  Comm.  199,  n.  1. 

(2)  Trask  v.  Bowers,  4  N.  H.  309. 

(3)  Beattie  v.  Robin,  2  Verm.  181. 


110  DELIVERY    AND    ACCEPTANCE.  [Chap.    IIF. 

were  to  be  pastured  by  A  for  the  plaintiff,  at  the  customary 
price.  The  cattle  being  attached  by  a  creditor  of  A,  the  plain- 
tiff brings  an  action  ngainst  the  officer.  Held,  possession  by 
the  vendor  was  only  evidence  of  fraud,  strong,  but  not  conclu- 
sive ;  and,  under  the  circumstances  of  this  case,  the  plaintiff  was 
entitled  to  recover.(l) 

11.  The  plaintiff,  having  loaned  money  to  A,  sent  his  son  to 
A  to  procure  a  bill  of  sale  of  his  property,  which  was  accord- 
ingly given.  The  son  took  possession  of  the  property.  The 
lease,  however,  of  A's  house,  was  not  assigned,  though  the  son 
remained  in  possession ;  but  A  still  continued  to  occupy  it  and 
to  act  as  master,  and  no  notice  of  the  transfer  was  given  to  the 
laborers  employed,  who  were  hired  by  the  son,  but  received  or- 
ders in  A's  name.  In  an  action  by  the  plaintiff  against  creditors 
of  A  for  seizing  the  property ;  the  jury  found  a  verdict  for  the 
plaintiff,  which  the  Court  refused  to  set  aside. (2) 

12.  Assignment  of  the  furniture  and  other  personal  property 
in  a  tavern,  as  security  for  a  debt,  with  a  proviso  that  the  gran- 
tee should  take  possession  on  failure  of  payment  of  any  instal- 
ment, sell  the  property,  &c.,  till  which  time  the  vendor  might 
keep  possession.     Held,  good  against  creditors.(3) 

13.  A  vendee  took  from  the  vendor  the  following  writing  "  A 
bought  of  B,"  &LC.  (enumerating  the  articles  and  prices.)  "  Re- 
ceived payment.  B."  The  property  was  delivered,  but  return- 
ed to  the  vendor  and  afterwards  attached  as  his.  Held,  the  pos- 
session of  the  vendor  was  not  conclusive  evidence  of  fraud,  and 
that,  after  a  suggestion  of  fraud,  parol  evidence  was  admissible 
to  prove  the  transaction  a  mortgage.  The  above  instrument 
was  not  a  bill  of  sale,  but  a  bill  of  parcels,  not  stating  the  terms 
of  the  contract,  but  resembling  a  receipt,  although,  unexplain- 
ed, it  would  be  sufficient  to  pass  the  property. (4) 

14.  A  gives  a  bill  of  sale  to  B,  and  becomes  bankrupt,  before 

(1)  Brooks  V.  Powers,  15  Mass.  244. 

(2)  Benton  v.  Thornhill,  7  Taun.  149. 

(3)  Martindalc  v.  Booth,  3  B.  &  Aid.  505. 

(4)  Fletcher  v.  WiUard,  14  Pick.  464. 


Sect.    II.]  NECESSITY    OF    DELIVERY,    &C.  Ill 

possession  taken  by  the  latter.  Held,  the  assignees  of  A  might 
recover  for  the  property  against  the  assignees  of  B.(l) 

15.  A  gave  a  bill  of  sale  to  B,  but  retained  and  used  the  pro- 
perty till  B's  bankruptcy.  Six  months  after  the  sale,  and  with 
all  practicable  expedition,  the  assignees  took  possession.  After- 
wards, A  also  became  bankrupt.  Held,  the  assignees  of  A  could 
not  recover  on  account  of  the  property  ;  that  although,  by  the 
terms  of  a  conveyance,  the  vendee  may  take  possession  imme- 
diately, and  yet  delays  for  six  months;  such  conveyance  is  still 
valid  against  third  persons,  unless  their  claims  intervene  be- 
tween the  sale  and  possession  taken. (2) 

IG.  A  father  gave  to  his  daughter,  who  lived  with  him,  and 
was  of  age,  a  female  calf  whose  dam  was  dead,  on  condition  of 
her  bringing  it  up.  She  accordingly  brought  it  up  by  hand.  It 
was  fed  on  the  father's  farm,  and  after  it  had  grown  up,  its  milk 
vvas  used  in  his  family,  he  making  no  charge  for  the  daughter's 
board  or  the  keeping  of  the  cow,  and  she  making  none  for  her 
labor  or  for  the  milk.  Held,  there  was  a  valid  gift  and  delivery, 
as  against  creditors  of  the  father  (3) 

17.  A  mortgaged  to  B  a  horse,  as  security  for  a  debt  and  fu- 
ture advances,  and  made  a  formal  delivery,  but  remained  in  pos- 
session, and  used  the  horse  as  his  own  ;  and  the  transfer  was 
not  known  to  persons  in  the  neighborhood.  A  afterwards  sold 
to  C,  bona  fide,  for  valuable  consider.ition,  and  without  notice. 
Held,  B  might  reclaim  the  property  ;  that  continued  possession 
was  consistent  with  the  nature  of  a  mortgage,  until  a  breach, 
though  not  with  that  of  a  pledge. (4) 

18.  Where  goods  are  sold,  not  being  in  possession  of  the  ven- 
dor, but  of  a  third  person,  who,  being  notified  of  the  sale,  con- 
sents to  keep  the  property  for  the  vendee,  the  sale  is  not  fraudu- 
lent, though  not  accompanied  by  change  of  possession.  Nor  is  it 
any  proof  of  fraud,  that  the  vendor,  having  authority  from  the 


( 1 )  Mair  v.  Glennie,  4  M.  &  S.  240. 

(2)  Robinson  v.  Mc'Donnell,  2  B.  &  AI.  134. 

(3)  Martrick  v.  Linfield,  21  Pick.  325. 

(4)  Lunt  V.  Whitaker,  1  Faiif.  310. 


112  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

vendee  to  sell  or  let  the  property,  sold  a   part,  let  the  rest,  and 
received  payment  therefor.(l) 

19.  A  change  of  possession,  to  render  the  sale  valid  against 
creditors,  must  be  bona  fide  and  substantial,  not  merely  colora- 
ble. 

20.  A  publican,  becoming  insolvent,  assigned  his  furniture 
and  stock  in  trade  to  his  creditors.  A  servant  of  the  assignees 
was  put  in  possession,  but  the  debtor  and  his  wife  carried  on 
the  business  several  weeks  as  before,  having  access  to  the  till  in 
which  the  servant  deposited  the  money  which  he  took  from  cus- 
tomers.    Held,  the  sale  was  void  against  creditors. (2) 

21.  But  where,  after  a  sale,  the  vendor  and  vendee  have  joint 
possession  of  the  property,  the  transaction  is  not  fraudulent 
against  creditors,  unless  they  have  also  joint  control  of  it.  Thus, 
where  one  merely  works  about  the  shop  in  which  the  goods  are, 
as  an  under-workman,  this  does  not  give  him  legal  possession. 
The  question  is,  who  is  at  the  head  of  the  establishment.  If  a 
difficult  one  to  settle,  the  possession  is  joint. (3) 

22.  Upon  a  sale  of  cattle,  it  is  not  conclusive  evidence  against 
the  presumption  of  fraud,  arising  from  the  vendor's  continued 
possession,  that  the  purchaser  had  himself  no  farm  or  forage  for 
them.(4) 

23.  Where  a  vendee  takes  possession  at  a  time  subsequent  to 
the  sale,  but  before  the  rights  of  creditors  accrue  by  attachment 
or  otherwise,  he  shall  hold  against  creditors.  Thus,  A  gave 
a  bill  of  sale  of  a  ship  to  B,  who  agreed  in  writing  to  reconvey 
on  payment  of  a  certain  note.  B  took  possession  eight  months 
after  the  sale,  after  which  a  creditor  of  A  attached  the  ship. 
Held,  B's  title  should  prevail  over  the  attachment.(5) 

24.  Where  goods  are  sold  on  execution,  continued  possession 
by  the  debtor  is  not  fraudulent  against  creditors,  because  the 
transaction  is   in  its  nature   notorious,  and   the  purchase  bona 

fide.     The  rule,  being  founded  on  these  reasons,  does  not  apply 


(1)  Harding  V.  Janes,  4  Verm.  462. 

(2)  Wordall  v.  Smith,  1  Camp.  332.    1  Esp.  205.     But  see  Ry.  &  M.  312. 

(3)  Allen  V.  Edgcrtoii,  3  Verm.  442. 

(4)  Jennings  v.  Carter,  2  Wend.  446. 

(5)  Bartlett  v.  Williams,  1  Pick.  288. 


Sect.    11.]  NECESSITT    OF    DELIVERY,    Scc.  113 

to  an  auction  sale  made  by  a  Bheriff  by  agreement  of  parties, 
,    without  advertisement,  or  any  legal  precept  to  warrant  it.(l) 

26.  The  question  of  fraud  sometimes  arises,  where  the  vendor 
of  goods  is  enabled  to  purchase  ihem  by  the  aid  of  the  vendee, 
giving  the  latter  a  claim  on  them  as  security,  or  where  the  vendee 
himself  is  the  nominal  purchaser,but  with  the  funds  of  the  vendor. 

527.  A  loaned  money  to  B  to  purchase  goods,  taking  a  bill  of 
sale  of  the  goods  as  security  ;  but  B  remained  in  possession. 
Held,  such  possession  was  not  fraudulent  against  creditors.(2) 

28.  A,  having  purchased  a  public  house,  but  being  unable  to 
procure  a  license,  put  B,|an  insolvent  person,  into  the  house,  as 
his  servant.  B  obtained  a  license,  and  A  furnished  the  money 
to  pay  for  it.  Held,  by  a  majority  of  the  judges,  that  the  goods 
in  the  house,  furnished  by  A,  were  not  liable  to  be  taken  by  B's 
creditors. (3) 

29.  But  where  one  sells  goods,  taking  a  mortgage  back,  it  has 
been  held,  that  the  mortgagor's  continuing  in  possession  is  frau- 
dulent against  creditors.  Thus,  A  sold  to  B,  taking  notes  and 
a  mortgage  as  security,  but  B  took  and  retained  possession  of 
the  property.  Held,  the  mortgage  was  void  as  against  the 
creditors  of  B.  The  transaction  could  not  be  treated  as  a  sale 
from  A  to  B,  which  was  not  to  be  perfected  or  completed  till 
performance  of  a  condition.  A's  title  accrued  by  the  mortgage, 
and  was  in  no  way  aided  by  his  prior  ownership.  In  Vermont, 
it  has  been  always  held,  according  to  the  common  law,  that  a 
sale  without  change  of  possession  is  void  against  creditors  of 
the  vendor  ;  and  this  principle  applies  to  a  mortgage  given  back 
to  the  vendor  at  the  time  of  sale.(4) 

30.  Where  a  man  conveys  the  same  goods  successively  to  two 
creditors,  delivering  possession  to  neither,  and  the  subsequent 
grantee  afterwards  obtains  possession,  which  the  former  takes 
from  him ;  the  latter  grantee  cannot  maintain  trespass,  because, 


(1)  4  Venn.  465.     2  Bos.  &  P.  69.     4  Taun.  823.     1   Star.  367.     8  Taun.  838.    4 
B.  &  C  652.     Batchelder  v.  Carter,  2  Verm.  168. 

(2)  Bull.  N.  P.  258.     1  Ld.  Rav.  286. 

(3)  Dawfon  t.  Wood,  3  Taun.  256. 

(4)  Woodward  v.  Gales,  9  Verm.  358 

15 


JI4  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

though  both  transfers  are  void  against   creditors,  yet  they  both 
bind  the  vendor,  and  the  former  grantee  has  the  elder  title.(l) 

31.  It  seems,  a  creditor,  with  whose  knowledge  and  consent 
a  bill  of  sale  is  given,  cannot  avoid  it  on  the  ground  of  the  ven- 
dor's retaining  possession  (2) 

32.  Where  the  property  sold  is  of  a  nature  which  does  not 
easily  admit  of  a  change  of  possession,  the  rule  more  especially 
applies,  that  the  retaining  of  possession  by  the  vendor  is  not  a 
fraud  upon  creditors.  Thus  A  mortgaged  land,  having  upon  it 
a  windmill,  which  was  not  a  fixture,  a  bargain  and  sale  of  the 
latter  being  inserted  in  the  mortgage.  Held,  a  change  of  pos- 
session was  not  necessary  to  protect  the  mill  from  creditors 
of  A.(3) 

33.  A  statute  of  New  York  provides,  that  in  all  cases  arising 
under  the  statute,  the  question  of  a  fraudulent  intent  shall  be 
one  of  fact,  not  of  law.  Notwithstanding  this  provision,  how- 
ever, where  there  is  no  immediate  delivery,  upon  a  sale  of  per- 
sonal property,  nor  any  actual  and  continued  change  of  posses- 
sion, or  satisfactory  explanation  of  the  want  of  it ;  the  Court  is 
bound  to  direct  a  verdict  for  the  creditor  who  disputes  the  valid- 
ity of  the  conveyance,  and  the  jury  are  not  authorized  to  pass 
upon  the  question  of  intention.  Their  only  authority  to  do  this, 
is  where  fraud  is  alleged,  notwithstanding  a  change  of  posses- 
sion.* (4) 

(1)  Baker  V.  Lloyd,  Bull.  N.  P.  258. 

(2)  Steel  V.  BrcAvn,  1  Taun.  381 . 

(3)  Steward  v.  Lombe,  1  Brod.  &  B.  506. 

(4)  Stevens  V.  Whitinore,  19  Wend.  181. 


*  On  the  subject  of  this  section,  see,  in  addition  to  the  authorities  cited,  8  Taun. 
675.  3B.  &C.368.  2  Dana,  204.  3  Cow.  166.  S  Conn.  160.  5  Greenl.  96.  2 
South.  738.  5  Rand.  211.  3  Dev.  146.  3  Yerg.  475.  2  N.  H.  13.  1  Bai.  538.  4 
Leigh,  635.  ICranch,  309.  3  Munf.  1.  17S.  &R.  17.  1  Wash.  C.  38.  1  Halst. 
55.  6Aik.  158.  6  Verm.  621.  4  Mas.  321.  9  Wend.  198.  4  Binn.  258.  1  Penn. 
57.     8  Greenl.  326.     5  Const.  S.  C.  123. 


Sect.  III.]  EFFECT    OF    A    SALE,    &C.  115 


Section    III. — effect    of    a  sale,  where    any   thing    re- 
mains   TO    BE    done    to    the    THING    SOLD,    BY    THE    VENDOR. 

1.  Where  any  thing  remains  to  be  done  by  the  seller  of  goods, 
as  between  him  and  the  purchaser,  before  delivery  ;  the  latter 
acquires  no  complete,  present  right  of  property,  and  cannot  sus- 
tain irovc7-.{l) 

2.  Bargain  and  sale  of  twenty  tons  of  oil  from  a  stock  con- 
sisting of  several  large  quantities  in  different  vessels  and  at  dif- 
ferent places.  The  quantity  sold  was  not  separated  from  the 
rest.  The  vendee  contracted  to  pay  a  certain  rent  to  the  ven- 
dor for  storage,  after  the  sale.  Held,  notwithstanding  this  last 
circumstance,  the  property  did  not  pass.  It  was  remarked,  that 
the  difficulty  of  regarding  any  specific  part  of  property  in  bulk 
as  transferred  to  the  vendee,  without  an  actual  separation,  is 
greater  in  the  case  oniquids  than  o(  solids,  because  the  particles 
which  compose  the  former  are  constantly  changing  their  relative 
position. (2) 

3.  A,  having  a  quantity  of  hemp  in  the  hands  of  B,  sold  a 
part  of  it  to  C,  payable  by  C's  acceptance  at  a  certain  time,  and 
fourteen  days  allowed  for  delivery.  A  gave  C  an  order  on  B,  to 
weigh  and  deliver  the  specified  quantity  to  C.  Within  the  four- 
teen days,  A  notified  B  not  to  deliver  the  hemp  to  C,  it  not  hav- 
ing been  weighed,  and  no  acceptance  given  in  payment ;  but  B 
did  deliver  to  C.  A  usage  was  shown,  for  the  holder  of  an  or- 
der to  indorse  it  to  his  vendee,  and  he  again  to  another  purchas- 
er, and  so  on,  without  any  weighing  of  the  hemp  till  actually 
taken.  Held,  this  usage  could  give  the  indorsee  no  greater 
rights  over  the  goods,  than  the  indorser  himself  had  ;  that  the 
sale  to  C  was  incomplete,  and  A  might  maintain  trover  against 

him. (3) 

4.  A  quantity  of  turpentine  was  sold  in  casks,  at  auction,  at 

(1)  Hanson  v.  Meyer,  6  E.  627.     Dole  v.  Siimpson,  21  Pick.  384. 

(2)  White  V.  Wili<s,  3  Taun.  176. 

(3)  Shepley  v.  Davis,  3  Taun.  617. 


11^  DELIVERY    AND    ACCEPTANCE.  [Chap.    Ilf. 

BO  much  per  hundred  weight ;  the  casks  to  be  taken  at  a  certain 
marked  quantity,  excepting  the  two  last,  from  which  the  vendor 
was  to  fill  up  the  rest  before  delivery,  and  which,  consequently, 
were    themselves  to  be  sold  at  uncertain  quantities.     The  pur- 
chasers to   pay  a  deposit   at   the  time,  and   the   balance   within 
thirty  days,  upon  delivery  ;   and  to  have  the  privilege  of  keeping 
the   property  in   the  warehouse  of    the   vendor  for  thirty  days, 
free  of  charge,  afterwards  paying  rent.     The  vendee  employed 
the  warehouseman,  as  his  agent  in   relation  to  the  turpentine. 
The  warehouseman  filled   some  of  the  casks  from  the  two  last, 
but  left  the  bungs   out,  to  give  the  custom-house  officer  an  op- 
portunity of  gauging  them.     Before  he  could   fill   the  rest,  and 
within  the  thirty  days,  the  turpentine  was  destroyed  by  an  acci- 
dental fire.     Held,  those  of  the  casks  which  had  been  filled  had 
become  the  property  of  the   vendee.     Nothing   remained  to  be 
done  to  them  by  the  vendor  ;  but  the  vendee  was  merely  to  have 
them  gauged,  as  necessary  to  a  removal.     The  leaving  out  of 
the  bungs   for   the  purpose  of  gauging  was  done  by  the  ware- 
houseman as  agent  for  the  vendee,  the  gauging  being  his  duty^ 
and  not  the  vendor's.     But,  on  the  other   hand,  the  casks  not 
filled  still  remained  the  property  of  the  vendor.     The  contracts 
must  be  regarded  as  distinct,  in  relation  to  the  distinct  lots  pur- 
chased.    The  action,  being  for  money  had  and  received,  to  re- 
cover the  deposit,  was  sustained   as  to  the  casks  last  mention- 
ed.(l) 

5.  A  vendee  agreed  to  purchase  all  the  vendor's  starch,  lying 
at  a  certain  warehouse,  at  so  much  per  hundred  weight,  to  be 
paid  for  by  a  bill  at  two  months.  The  starch  was  done  up  in 
papers,  and  the  weight  not  ascertained,  but  to  be  determined  af- 
terwards, and  fourteen  days  allowed  for  delivery.  The  vendor 
gave  the  vendee  a  note  addressed  to  the  warehouseman,  request- 
ing him  to  weigh  and  deliver  all  the  starch.  The  vendee  hav- 
ing become  bankrupt,  held,  that  portion  of  the  starch  which  had 
not  been  weighed  did  not  pass  to  the  vendee,  but  the  vendor 
might  reclaim  it.  Two  things  were  necessary  to  the  vesting  of 
the  property ;  viz.   payment  of  the  price,  and  the   weighing  of 

(1)  Rugg  V.  Minett,  HE.  210. 


Sect.     III.]  EFEECT    OF    A    SALE,   &C  117 

the  article,  upon  which  the  amount  to  be  paid  depended. 
Whether,  if  the  former  only  of  these  acts  remained  unperform- 
ed, delivery  of  part  would  vest  the  whole,  might  be  questiona- 
ble. The  warehouseman  had  no  authority  to  deliver  the  starch 
till  it  was  weighed;  much  less  had  the  vendee  or  his  assignees 
authority  to  take  it  without  consent  of  the  former.(l) 

G.  Contract  to  sell  a  stack  of  bark  at  so  much  per  ton.  The 
vendee  agreed  to  take  and  pay  for  it  on  a  certain  day.  After- 
wards, a  part  of  the  bark  was  weighed  and  delivered.  Held, 
the  portion  unweighed  did  not  pass,  because  the  weighing  must 
determine  the  sum  to  be  paid.  And  even  if  it  did  pass,  an 
action  for  goods  sold  and  delivered  could  not  be  sustained,  nor, 
it  seems,  an  action  for  goods  bargained  and  sold.*  Although 
the  subject-matter  of  the  contract  was  ascertained  at  the  time 
of  sale, — viz.  all  the  bark,  yet  it  was  to  be  purchased  at  so  much 
per  ton.  The  concurrence  of  the  vendor  was  necessary  in  the 
act  of  weighing,  and  he  was  not  bound  to  deliver,  till  this  had 
been  done.  He  might  have  discharged  himself  from  any  liabil- 
ity in  case  of  accidental  loss,  by  giving  notice  to  the  vendee  that 
at  a  certain  time  he  should  weigh  the  bark.  If  the  declaration 
had  been  framed  upon  the  special  contract,  there  must  have 
been  an  allegation  and  proof  of  a  sale  at  so  much  per  ton,  that 
the  bark  weighed  so  much,  and  the  price  amounted  to  a  certain 
sum.(2) 

7.  Agreement  for  the  sale  of  an  ark-load  of  lumber.  A  part 
of  the  lumber  was  landed,  but  the  landing  of  the  rest  was  post- 
pored  for  the  purpose  of  having  a  measurement  by  the  inspec- 
tor. The  vendor,  having  waited  a  day  or  two  for  the  inspector, 
re-loaded  the  portion  which  had  been  landed,  and  went  away 
with  the  entire  load.  In  an  action  of  trover  brought  by  the 
vendee,  held,  the  suit  could  not  be  sustained  upon  these  facts. 
Something  remained  to  be  done  between  the  vendor  and  ven- 
dee, and  consequently  the  property  had  not  passed.     The  lum- 

(1)  Hanson  r.  Meyer,  6  E.  614. 

(2)  Simmons  v.  Swift,  5  B.  &  C.  857. 

*  Littledale,  J.,  thought  the  property  might  have  passed,  but  still  no  action  would 
lie  for  the  price. 


1  18  DF-.MVERY     AND    ACCEPTANCE,  [Chap.    III. 

ber  was  to  be  assorted  and  measured,  in  order  to  ascertain  the 
quantity.  The  loads  contained  different  qualities,  and  at  dif- 
ferent prices.  The  contract  was  for  a  sale  of  the  whole,  and 
neither  party  was  under  any  obligation  to  deliver  less  on  the  one 
hand  or  to  receive  less  on  the  other.  No  evidence  was  offered, 
except  the  bringing  of  the  present  action,  that  the  vendee  was 
willing  to  accept  and  pay  for  that  portion  which  had  been  un- 
loaded, without  having  the  rest.  Nor  was  there  any  evidence 
that  the  vendor  was  willing  to  sell  this  portion  alone.  On  the 
contrary,  both  parties  intended  to  goon  and  complete  the  whole 
contract.  Although  the  measuring  and  landing  of  a  portion 
was  part  of  the  process  of  delivery  ;  yet  till  measurement  of  the 
whole,  the  vendor  had  not  completely  surrendered  his  dominion. 
A  part-delivery  passes  to  the  vendee  a  property  in  the  portion 
delivered,  only  where  there  is  an  actual  change  of  possession, 
control  or  dominion.  In  the  present  case,  the  vendor  did  not 
quit  possession.  Moreover,  the  vendee  neither  paid  nor  tender- 
ed the  price,  an  act  which  he  was  bound  to  do  without  any  de- 
mand by  the  vendor.(l) 

8.  A  had  sixty-nine  bales  of  cotton,  marked  G,  at  the  store 
of  B,  and  thirty  of  the  same  mark,  at  the  store  of  C,  both  in 
Brooklyn,  N.  Y.  He  sold  sixty-six  bales,  marked  G,  to  one  D, 
giving  him  the  following  pro  forma  bill  of  parcels—"  G6  bales, 
say  19,800  lbs.,  $12,00  per  cvvt.,  1  per  cent,  off."  D  paid  at 
the  time  $1800,  in  part  payment  for  the  whole.  The  cotton 
lying  at  the  store  of  C  was  afterwards  destroyed  by  fire.  D  de- 
manded of  A  an  order  for  sixty-six  bales,  but  A  refused  it  and 
gave  an  order  for  only  thirty-six,  which  were  weighed  by  A,  and 
another  bill  of  parcels  delivered  to  D,  including  the  thirty-six 
according  to  the  weigh-master's  bill,  and  thirty  bales  at  a  cer- 
tain weight  each,  accompanied  with  this  clause,  "  deduct  for  sup- 
posed loss  150."  Thirty-six  bales  were  delivered  at  the  weigh- 
ing. A  brings  an  action  against  D  for  the  price  of  the  thirty 
bales.  Held,  the  suit  could  not  be  sustained,  as  these  bales 
never  became  the  property  of  D.  They  not  being  identified 
in  the  agreement,  nor  specifically  sold,  the  contract  might  have 

(1)  Filch  V.  Beach,  15  Wend.  221. 


Sect.    III.]  EFFECT    OF    A    SALE,    &C.  119 

been  fulfilled  by  delivering  this  number  of  bales,  having  the 
mark  named,  from  any  other  place  besides  Brooklyn,  or  any 
other  store  in  that  city.  So,  if  the  agreement  was  construed  as 
an  engagement  to  sell  the  thirty  bales  at  the  warehouse  of  C, 
yet  not  being  weighed,  the  property  did  not  pass.  The  delive- 
ry of  the  thirty-six  bales  after  the  loss  by  fire  was  no  recogni- 
tion of  D's  claim  to  the  rest.  The  only  efiect  of  such  delivery 
and  acceptance  was  to  exonerate  the  vendor  from  his  liability 
pro  tanto,  leaving  the  question  open  as  to  the  rest  of  the  pro- 
perty.(l) 

9.  The  defendant  agreed  to  purchase  from  the  plaintiff  a 
quantity  of  fish,  at  the  rate  of  nineteen  shillings  per  barrel  ;  to 
pay  for  inspection;  and,  if  the  plaintiflf  would  deliver  the  fish 
upon  a  certain  dock  on  Long  Island,  that  he  (the  plaintiff) 
should  not  be  bound  to  make  up  the  icantage  upon  inspection 
and  re-packing,  estimated  at  three  per  cent.  On  the  other  hand, 
if  the  delivery  were  on  a  dock  in  New  York,  the  wantage  was 
to  be  made  up  by  the  plaintiff.  The  parties  agreed  upon  an  in- 
spector, and  the  plaintiff  made  his  election  to  deliver  the  fish  on 
Long  Island.  He  put  them  upon  the  dock,  but  no  one 
was  ready  to  receive  them,  and  they  were  not  received. 
Held,  under  these  circumstances,  the  plaintiff  could  not  main- 
tain assumpsit  for  goods  sold  and  delivered.  The  parties  in- 
tended, that  the  inspection  should  precede  a  complete  delivery. 
Till  such  inspection  took  place,  the  quantity  was  uncertain. 
Moreover,  the  contract  said  nothing  of  the  quality  of  the  fish, 
and  contained  no  warranty  ;  till  the  inspection,  therefore,  it 
could  not  be  known  whether  those  furnished  were  such  as  the 
defendant  was  bound  to  receive.  The  act  of  unlading  could 
not  be  considered  a  delivery.  If  the  property  were  afterwards 
destroyed,  the  plaintiff  could  sustain  no  suit  for  the  price, 
because  the  quality  was  left  undetermined.  It  was  further  held, 
that  if  the  contract  had  been  in  writing,  an  action  in  this  form 
would  not  lie,  but  there  must  be  a  special  declaration. (2) 

10.  The   plaintiff  sold   to  the  defendant   2SU  bales  of  skins, 


(1)  Chapman  v.  Lctihrop,  6  Cow.  110. 

(2)  Outwater  v.  Dodge,  7  Cow.  85. 


120  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

stated  to  contain  five  dozen  each,  at  bo  much  per  dozen.  Ac- 
cording to  a  usage  of  trade,  it  was  ,the  duty  of  the  vendor  to 
ascertain  the  number  of  skins  by  counting.  Before  this  was 
done,  the  property  was  destroyed  by  fire.  Held,  the  loss  must 
fall  on  the  plaintiff,  and  he  could  maintain  no  action  for  the  val- 
ue of  the  skins,  either  as  for  goods  bargained  and  sold,  or  up- 
on a  count  for  not  accepting  bills  of  exchange  according  to 
agreement.  The  enumeration  required  was  for  the  benefit  of 
the  vendor. (1) 

11.  A  agreed  with  B  to  burn  a  kiln  of  bricks,  for  which  he 
was  to  receive,  when  burnt,  10,000  bricks,  not  to  be  taken  by 
himself,  but  delivered  to  him  by  B.  Held,  this  was  not  a  sale 
of  a  certain  number  of  bricks,  but  a  mere  contract  to  sell 
them  ;  and  that,  there  having  been  no  actual  or  constructive  de- 
livery to  A,  he  had  no  attachable  interest  in  the  property.  It 
would  have  been  otherwise,  it  seems,  if  A  had  before  such  at- 
tachment demanded  the  stipulated  number  of  bricks,  and  been 
directed  by  B  to  take  them,  or  if  B  had  in  any  way  assented  to 
his  taking  them. (2) 

12.  The  defendant  offered  the  plaintiff  a  certain  sum  for  a 
steam-engine,  payment  to  be  made,  partly  when  taken,  which 
was  to  be  in  two  or  three  weeks,  and  the  balance  by  a  note. 
The  plaintiff  accepted  the  offer,  and  said  to  the  defendant,  "you 
consider  the  engine  to  be  "yours,  as  it  is  "  The  defendant  an- 
swered "  yes."  The  boiler  was  set  in  bricks  in  the  shop  of  the 
plaintiff,  and  could  not  be  removed  till  the  bricks  were  taken 
away,  which  the  plaintiff  was  to  do.  The  following  week,  he 
accordingly  removed  them.  The  defendant  was  proved  to  have 
said  that  he  had  purchased  the  engine,  and  to  have  inquired 
what  would  be  the  cost  of  getting  it  carried  to  a  certain  place. 
The  contract  was  not  in  writing,  nor  was  any  part  of  the  price 
paid  or  secured.  The  defendant  did  not  take  the  engine. 
Held,  there  had  been  no  legal  delivery,  and  the  contract  was 
void  by  the  Statute  of  Frauds.     An  act  remained  to  be  done  by 


(1)  Zagury  v.  Funiell,  2  Camp.  240. 

(2)  Bievvci  V.  Smith,  3  Gicenl.  44. 


Sect.    III.]  EFFECT    OF    A    SALE,    &C.  121 

the  plaintiff,  before  the  property  was  to  be  delivered,  and  there- 
fore the  title  had  not  passed.(l) 

13.  A  quantity  of  hay  was  purchased  by  bill  of  parcels  and 
paid  for,  to  be  weighed  out  of  the  mow,  at  pleasure  of  the  ven- 
dee. Held,  before  weighing,  the  vendee  could  not  maintain  tro- 
ver for  any  part  of  the  hay.  The  bill  of  parcels  was  merely  a 
contract  to  deliver  the  stipulated  quantity  of  hay. (2) 

14.  A  assigns  to  B,  as  security,  nine  arches  of  bricks  in  a 
kiln  containing  a  larger  number,  but  these  arches  were  not 
separated  or  specifically  designated  from  the  rest.  A  afterwards 
sold  enough  of  the  arches  to  leave  less  than  nine,  and  the  re- 
maining number  were  attached  by  his  creditors.  Held,  B  could 
not  maintain  trespass  against  the  oflicer.(3) 

15.  The  same  rule  is  applied,  where  an  article  manufactured 
by  the  vendor  is  delivered  to  the  vendee,  but  on  condition  to  be 
taken  back  if  it  proves  unsatisfactory  ;  more  especially  if  ajiy 
thing  still  remains  to  be  done  to  it  by  the  vendor. 

16.  The  plaintiffs,  machinists  in  Connecticut,  agreed  to  fur- 
nish one  A  with  a  ponderous  machine,  weighing  about  eight 
tons,  to  be  carted  by  them  and  put  up  in  A's  mill  in  Worcester. 
If  it  should  work  to  A's  satisfaction,  he  was  to  pay  for  it,  oth- 
erwise it  was  to  be  taken  away.  The  machine  was  accordingly 
placed  in  a  new  mill,  which  had  been  prepared  to  match  it ;  but 
before  being  fully  set  up,  or  all  the  material  parts  furnished,  it 
was  put  in  operation  for  trial.  A  was  not  satisfied  with  the  ex- 
periment. The  same  day,  it  was  attached  as  his  property. 
Held,  the  property  had  not  passed  to  A,  and  the  plaintiffs  might 
maintain  trespass  against  the  officer.  Under  the  circumstances, 
the  plaintiffs  could  not  have  offered  the  article  as  complete  ac- 
cording to  contract ;  nor,  had  they  refused  to  complete  it, 
could  A  have  maintained  trover  against  them,  but  he  must  have 
sued  upon  his  contract.  And  the  plaintiffs  were  sufficiently  in 
possession  to  maintain  trespass.  By  the  contract,  they  had  the 
right  of  going  to  the  building  to  complete  the  work,  without 
being   trespassers.     It  is  as  if  a   watchmaker   should   put  up  a 

(1)  Dole  V.  Stimpson,  21  Pick.  384. 

(2)  Davis  V.Hill,  3  N.H.  382. 

(3)  Merrill  v.  Hunncwell,  13  Pick.  213. 

16 


1^2  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

clock  with  an  agreement  that  if  it  should  keep  good  time,  the 
owner  of  the  house  would  buy  it.  In  such  case,  the  former 
might  maintain  trespass  against  any  one  interfering  with  the 
property  before  a  trial. (1) 

17.  The  rule,  that  where  anything  remains  to  be  done  to 
goods  sold,  by  the  vendor,  the  property  does  not  pass,  applies 
only  where  there  is  a  mere  constructive  delivery  and  possession, 
not  where  there  is  an  actual  one.  In  this  case,  the  materials 
and  labor  subsequently  expended  by  him  pass  to  the  vendee  hy 
accession.  (2) 

18.  Thus,  where  a  quantity  of  goods,  agreed  to  be  sold  at  a 
certain  rate,  is  delivered,  the  sale  is  complete,  though  they  are 
still  to  be  counted,  weighed  or  measured,  in  order  to  determine 
the  sum  to  be  paid  for  them.  The  act  of  delivery  shows  that  it 
is  thereby  intended  to  complete  the  sale.  The  measuring,  &c. 
constitutes  no  part  of  the  contract  of  sale.  These  principles 
were  applied  in  a  case,  where  the  vendor  was  part-owner  of  a 
quantity  of  bricks  estimated  at  370,000,  and  sold  his  share  in 
the  whole. (3) 

19.  The  rule  above  stated  has  been  further  qualified  by  a  late 
decision  in  Massachusetts,  as  follows. 

20.  Where  any  act  remains  to  be  done  to  goods  contracted 
to  be  sold — as,  for  instance,  weighing  or  measuring, — and  there 
is  there  no  proof  of  the  parties'  intention  that  the  property 
should  pass;  the  title  is  not  changed.  But  it  is  otherwise, 
where  payment  is  not  a  condition  precedent,  and  where  the  in- 
tention is  that  the  sale  should  be  complete.  (4) 

21.  A,  owning  a  quantity  of  timber  lying  in  a  pond  at  the 
end  of  a  canal,  in  charge  of  the  canal  superintendent,  agreed  to 
sell  it  to  B,  B  giving  him  the  following  instrument — "  received 
of  A  four  shots  white  oak  plank,  &c.  for  which  I  promise  to 
pay  him  $26  per  thousand,  board  measure.  The  above  timber 
delivered  in  the  mill-pond,"  &c.  A  gave  B  a  writing  as  follows 
"  Received  of  B  $200  in  part  pay  for  timber."     The  remain- 


(1)  Phelps  V.  Willard,  16  Pick.  29. 

(2)  Sumner  v.  Hamlet,  12  Pick.  82.     Everelt  v.  Tindall,  5  Esp.  169. 

(3)  Macomber  v.  Parker,  13  Pick.  175. 

(4)  Riddle  V.  Varnum,  20  Pick.  280. 


Sect.    III.]  EFFECT    OF    A    SALE,    &C.  123 

der  to  be  paid  in  ninety  days  from  surveying.  Cancellage  to  be 
paid  by  B,  when  he  takes  the  plank,  &c.  from  the  pond."  A 
further  agreed  that  B  might  have  a  measurement  made  by  the 
superintendent,  and  that  he  would  abide  by  it.  Before  any 
measurement,  B  became  insolvent,  and  the  property  was  attach- 
by  his  creditors.  A  brings  an  action  against  the  officer.  Held, 
if  there  was  a  delivery,  and  if  the  parties  intended  to  make  the 
sale  complete  before  ascertaining  the  measure ;  the  property 
had  passed  to  B,  and  the  action  could  not  be  maintained. (1) 

22.  Where  a  quantity  of  bacon  was  sold  for  a  fixed  price,  and 
the  weighing  of  it  was  to  take  place  merely  for  the  satisfaction 
of  the  vendee  ;  this  act  was  held  to  be  no  ingredient  in  the  con- 
tract, though  important  as  an  unequivocal  act  of  possession  and 
ownership  as  to  the  whole  property  ;  and  the  whole  therefore 
passed  to  the  vendee. (2) 

23.  The  plaintiff  purchased  certain  timber  growing  upon  land 
of  A,  felled  it,  and  sold  it  to  B  for  so  much  per  cubit  foot ;  B 
to  have  liberty  to  convert  the  timber  on  the  land.  B  marked 
and  measured  the  trees,  and  the  number  of  feet  in  each  was  as- 
certained, but  the  whole  contents  were  not  added.  B  having 
taken  some  of  the  trees,  the  plaintiff  requested  the  servant  of  B 
not  to  remove  any  more  timber,  till  he  knew  who  was  to  pay  for  it. 
Held,  the  whole  property  passed  to  B,  and  the  plaintiff  had  no 
lien  for  the  price.  The  plaintiff  parted  with  his  right  to  go  on 
A's  land,  which  became,  in  reference  to  the  timber,  the  ware- 
house of  B.  It  might  be  doubted  whether  the  plaintiff  had  pos- 
session, as  he  had  no  interest  in  the  land.  The  circumstance  of 
B's  removing  a  part  of  the  timber  showed  a  license  from  the 
plaintiff.  Nothing  remained  to  be  done  by  the  latter  to  com- 
plete the  sale.(3) 

24.  The  following  cases  seem  to  contradict  the  first  of  the 
exceptions  above  stated. 

25.  Where  goods,  agreed  to  be  sold,  are  delivered  to  the  ven- 
dee, to  be  put  in  marketable  condition,  and  paid  for  by  weight, 
which  is  to  be  subsequently  ascertained,  this  is  a  conditional  de- 

(1)  Riddle  V.  Varnum,  20  Pick.  280 

(2)  Hammond  v.  Anderson,  1  N.  R.  69.    2  H.  Bl.  504,  ace. 

(3)  Tansley  v.  Turner,  2  Scott,  238. 


124  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

livery,  and  does  not  pass  the  property.  Thus  A  contracted  to 
sell  B  a  pair  of  fat  cattle,  at  so  much  per  quarter,  B  to  take 
them,  prepare  them  for  slaughtering  and  slaughter  them,  take 
the  quarters  to  market,  weigh  them,  and  pay  for  the  cattle  the 
sum  that  the  whole  would  amount  to  at  $7,50  per  cwt.  Imme- 
diately after  coming  into  B's  possession,  the  cattle  were  seized 
on  execution  by  a  previous  creditor  of  B.  Held,  they  were  not 
liable  to  be  thus  taken.  The  vendor  was  not  bound  to  deliver 
the  property  without  payment,  and  this  could  not  be  made  till 
the  price  should  be  ascertained  by  weighing.  If  B  should  have 
refused  to  slaughter  the  cattle,  and  put  them  to  work  instead, 
A  might  have  retaken  them.  So  also,  if  he  had  refused  to  pay 
after  weighing ;  as  the  property  did  not  pass  till  payment  or  a 
waiver  thereof,  and  there  could  be  no  waiver  till  the  price  was 
known.  It  was  wholly  immaterial  whether  the  remaining  act 
was  to  be  done  by  the  vendor  or  vendee.  The  delivery  was 
made  for  a  special  purpose  and  rather  as  if  to  a  bailee  than  a 
purchaser.  It  was  sufficient  that  the  vendor  had  an  interest 
in  the  act  to  be  done,  and  a  right  to  be  present  at  the  doing  of 
it.(I) 

2C.  A  agreed  with  B,  who  kept  a  carpet  store,  upon  certain 
false  pretences,  to  buy  a  quantity  of  carpeting  and  pay  cash 
therefor.  According  to- usage,  the  carpeting  was  sent  to  his 
house  in  the  roll,  with  the  understanding  that  the  required  quan- 
tity should  be  cut  off,  and  the  remainder  returned,  with  pay- 
ment for  the  part  retained.  The  carpets  were  made,  and  put 
down  in  A's  house,  and  there  remained  three  weeks  before  the 
rest  was  sent  back.  In  the  mean  time  A  pawned  the  carpets  to 
C,  an  auctioneer,  who  was  employed  to  sell  the  furniture,  and 
bona  Jide  made  advances  upon  the  carpets.  A  then  absconded. 
Held,  B  might  reclaim  the  carpets  from  C.  As  the  number  of 
yards  was  to  be  determined  before  payment,  no  legal  delivery 
had  taken  place.  And  even  if  the  facts  had  shown  such  delive- 
ry, inasmuch  as  the  statute  of  New  York,  providing  for  the 
punishment  of  the  offence  of  obtaining  goods  by  false  pretences 
by  imprisonment  in  the  state  prison,  constitutes  the  act  a  felony ; 

(1)  Ward  V.  Shaw,  7  Wend.  404. 


Sect.    III.]  EFFECT    OF    A    SALE,    &.C.  125 

B  might,  on  this   ground,  regain  his  property,  thus  fraudulently 
obtained.(l) 


Section  IV. — delivery  to  one  of  two    purchasers    from 

THE    same    vendor. 

1.  Where  the  same  thing  is  sold  to  two  persons   by  transfers 
otherwise  equally  valid,   he  who   first  acquires   possession,  be- 
comes entitled  to  the  property.*     Thus,  the  plaintiff,  residing  at 
Boston,  and  being  a  creditor  of  one  A,  A  at  Philadelphia  July 
2,  1819,  assigned  to  him  by  a  written  instrument,  for  value  re- 
ceived, a  quantity  of  teas.     No   money  was  paid,  nor   any  dis- 
charge  given.     The  instrument  was  sent  by  mail,  and  reached 
Boston,  where  the  teas  were,  July  5.     Two  hours  and  a  half  af- 
ter the  making  of  the  assignment,  the  defendant,  an  officer,  at- 
tached the  property,  and  took  possession  of  it  as  belonging  to 
A.     The  teas  had  been  consigned  to  the  attaching  creditor,  on 
the  account,  at  the  risk,  and  for  the  use  of  A;  and   the  former 
had  no  notice  of  the  assignment  to  the  plaintiff.     Held,  the  at- 
taching creditor   stood  in  the  position  of  a  purchaser  for  valua- 
ble consideration,  and  his  title  should  prevail  over  the  plaintiff's, 
because  he  first  came   into  possession  of  the  property.     There 
was  nothing  in  this  case  equivalent  to  a  delivery  to  the  plaintiff. 
Both  he  and  A  supposed  that  the   goods  were  at  sea,  but  A  had 
no  bill  of  lading  or  other  document  to  deliver.     If  the  property 
had  been  consigned  to  A,  and  he  had  received  a  bill  of  lading 
after  his  agreement  with  the  plaintiff,  and   a  third  person  had 
bought  from  A  for   valuable  consideration   without  notice,  and 

(1)  Andrews  v.  Dietrich,  14  Wend.  31. 


*  Tiie  same  is  ;the  doctrine  of  the  civil  law.  «  Mamfesti  juris  est,  eum,  cui  priori 
traditum  est,  in  detinendo  domino,  esse  potionem."     Cod.  3, 32.  15. 

«  Ad  vindicationem  rei  duobus  separatim  diverso  tempore  distractoe  non  is  cui  pri- 
ori vendila,  sed  cui,  pretio  soluto,  vel  fide  dc  eo  habita,  prius  est  tradita,  admiltendus 
est."    Voet.  ad  Pand.  lib.  6,  tit.  1,  s.  20. 


126  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

received  the  bill  of  lading  indorsed,  such  purchaser  would  have 
had  a  title  against  the  plaintiff.(l) 

2.  A  and  B  were  general  partners  and  part-owners  with  others 
of  a  brig.  On  February  21,  the  brig  was  at  St.  Croix,  A  being 
on  board,  and  the  consignee  of  the  ship.  A  creditor  of  the 
firm  at  that  place  pressing  for  payment  of  his  demand,  one  C,  by 
request  of  A,  purchased  the  ship  from  him,  and  paid  the  debt. 
The  brig  was  delivered  lo  C,  who  sent  her  to  sea  as  his  property, 
and  caused  her  to  be  documented  in  his  name.  Eighteen 
days  before  the  sale  by  A,  B  sold  the  brig  at  home  to  D.  Held, 
C's  title  should  prevail  over  D's,  because  he  first  obtained  pos- 
session, and  the  effect  of  the  transaction  was  the  same,  as  if  A 
had  made  a  mortgage  directly  to  the  creditor,  which  would  un- 
doubtedly have  had  precedence  of  D's  title. (2) 

3.  More  especially  will  the  title  of  the  party  who  first  obtains 
possession  prevail,  where  the  other  transfer  is  to  some  extent 
executory  ;  and  where  there  are  technical  objections  to  its  tak- 
ing effect  either  as  an  absolute  or  conditional  sale. 

4.  The  joint  owners  of  a  ship  agreed  in  writing  to  pledge  it 
to  one  A  as  security  for  advances,  and  that  he  might  buy  any 
part  of  it  at  a  certain  rate,  but  made  no  delivery.  One  of  the 
owners  afterwards  made  a  bona  fide  transfer  of  his  share.  Held, 
such  transfer  should  prevail  over  the  claim  of  A.  The  agree- 
ment with  A  did  not  pass  an  absolute  title,  because  made  ex- 
pressly as  security,  and  containing  a  provision  for  future  pur- 
chase. Nor  was  it  a  mortgage,  because  there  was  no  delivery, 
and  the  contract  was  executory,  and  the  vessel  was  not  in  ex- 
istence at  the  time.  Nor  was  it  a  pledge,  for  want  of  delivery 
and  continued  possession.  The  contract  more  nearly  resem- 
bled bottomry,  but  could  not  take  effect  in  this  form,  because 
the  thing  did  not  exist  at  the  time,  and  the  facts  would  not  jus- 
tify such  a  construction. (3) 

(1)  Lanfear  v.  Sumner,*  17  Mass.  110.  Fletcher  v.  Howard,  2  Aik.  115.  Ricker 
V.  Cross,5N.  H.  572,  3. 

(2)  Lamb  V.  Durant,  12  Mass.  54. 

(3)  Bonsey  v.  Amie,8  Pick.  236. 

*  It  has  been  said  (Ricker  v.  Cross,  5  N.  H.  572,  3)  that  Lanfear  v.  Sumner  is  a 
case  by|itselfj  not  reconcileable  with  Putnam  v.  Dutch,  Portland  Bank  v.  Stacey,  and 
other  cases  relating  to  ships,  &.c. 


Sect,    v.]  SALE    OF    SHIPS    AT    SEA,    &C.  127 


Section  V. — sale  of  ships  at  sea,  &c. 

1.  It  has  been  already  somewhat  considered,  (p.  31)  how  far 
the  general  rule  of  delivery  is  dispensed  with,  where  property 
sold  is  of  such  a  nature  or  so  situated,  that  it  cannot  well  be 
delivered  at  the  time  of  sale.  There  is  a  certain  species  of 
property,  however,  to  which  this  exception  is  applied  more  fre- 
quently and  with  greater  propriety  than  any  other,  and  therefore 
deserving  of  special  notice  ;  to  wit,  ships  (and  other  property) 
at  sea. 

2.  A  transfer  of  a  ship  at  sea  is  effectual  by  delivery  of  a  bill 
of  sale,  subject  to  be  set  aside  by  creditors  on  the  ground  of  fraud 
in  case  the  mortgagee  (or  vendee)  neglects  to  take  possession 
upon  her  return,  in  reasonable  time,  or,  as  it  is  sometimes  said, 
with  all  possible  expedition.  lie  however  takes  a  title  subject 
to  any  incumbrances  incurred  before  notice  of  the  sale  ;  as,  for 
instance,  that  of  hypothecation.  The  question  whether  posses- 
sion was  taken  in  reasonable  time,  is  for  the  jury.  If  the  ship  ar- 
rive at  another  port  than  that  where  the  sale  takes  place,  a  no- 
tice forwarded  by  the  vendee  to  the  captain,  is  equivalent,  it 
seems,  to  taking  actual  possession.(l) 

3.  Upon   the  same  subject,  the  following  remarks   have  been 
made  by  the  Court  in  Massachusetts. 

4.  Personal  property  passes  by  grant  upon  execution  of  a 
deed,  and  at  common  law  actual  delivery  is  unnecessary.  By 
the  English  Statute,  21  Jac.  c.  19,  a  grant,  without  possession 
taken,  does  not  protect  the  grantee  as  against  the  assignee  of  the 
grantor  in  case  of  bankruptcy.  But  the  English  bankrupt  laws 
were  never  in  force  in  Massachusetts.  By  the  construction  of 
the  above  act,  the  sale  of  a  ship  and  cargo  abroad  is  good, 
though  no  immediate  possession  be  taken  if  the  eviilence  of 
title  is  delivered,  and  possession  taken,  as  soon  as  the  property 
comes  within  reach  of  the  vendee.  In  Massachusetts,  neglect 
of  delivery  may  be  a  fact  from  which  fraud  is  inferred.     There 

(1)  Badtam  v.  Tucker,  1  Pick,  396.  Joy  v.  Sears,  9  Pick.  4.  Brinloy  v.  .Spring, 
7Greenl.  241.    6  Conn.  284. 


128  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

is   no  distinction  between   the  effect  of  a  grand  bill  of  sale  in 
England  and  the  common  bill  of  sale  in  use  with  us.(l) 

5.  The  Court  in  Connecticut  have  also  remarked,  that  ships 
at  sea  are  commonly  delivered  by  indorsement  and  delivery  of 
the  bill  of  sale  and  other  documents,  evidential  of  right  and 
ownership.  So,  indorsement  and  delivery  of  a  bill  of  lading 
are  a  sufficient  delivery  of  a  cargo  afloat.  But  neither  is  good 
against  creditors,  unless  actual  possession  be  taken  with  all  pos- 
sible expedition. *(2) 

6.  Delivery  is  not  necessary  to  the  sale  of  a  share  in  a  ship. 
The  case  is  similar  to  that  of  a  ship  at  sea,  in  which  delivery  is 
impracticable. (3) 

7.  A  and  B  being  part  owners  of  a  ship,  which  lay  at  the 
port  of  Manchester,  A  at  his  house  in  Salem,  a  neighborinor 
town,  gives  a  mortgage  to  B  of  his  share,  by  way  of  indemnity 
for  B's  liabilities  on  his  account.  One  hour  after  this  transfer  was 
made,  the  ship  was  attached  by  creditors  of  A.  Immediately 
upon  her  arrival  at  Salem,  the  port  where  she  belonged,  B  went 
on  board  and  attempted  to  take  possession,  but  afterwards  allow- 
ed the  officer  to  retain  possession  for  several  days.  Held,  the 
sale  was  valid  to  pass  the  property  without  delivery,  which  was 
impossible  as  the  vessel  was  situated  at  that  time,  that  the  pos- 
session of  the  attaching  officer  was  wrongful  in  its  inception, 
and  there  was  no  laches  on  the  part  of  B  sufficient  to  make  it 
lawful,  the  law  requiring  strong  circumstances  to  mature  a 
wrong  by  sufferance  into  a  right.  Whether,  if  A  had  continued 
to  have  possession  jointly  with  B,  the  sale  would  be  void,  qu,(4) 

8.  A  ship  at  sea,  bound  to  a  port  in  Massachusetts,  was  mort- 
gaged in  another  state,  the  mortgagor  to  have  possession  till  de- 
fault in  paying  certain  notes.  After  her  arrival  in  port,  the  ship 
was  attached  in  a  suit  against  the  mortgagor  and  another  part- 
owner.     Subsequently  to  the  attachment,  and  in  reasonable  time 

(1)  Portland  Bank  v.  Stacey,  4  Mass.  663. 

(2)  Ingraham  v.  Wheeler,  6  Conn.  284.     Wendover  v.  Hogeboom,  7  John.  308. 

(3)  Addis  V.  Baker,  1  Anst.  222. 

(4)  Putnam  v.  Dutch,  8  Mass.  287. 

*A  ship  passes  by  delivery  only  without  any  bill  of  sale.  The  law  of  the  United 
States,  requiring  a  register  to  be  inserted  in  the  bill  of  sale,  affects  the  vessel  only  as 
an  American  ship,  with  certain  privileges  resulting  from  its  national  character. 


Sect,  v.]        SALF.  OF  SHIPS  AT  SEA,  &C.  129 

after  the  mortgagee's  right  to  take  possession  accrued,  his  agent 
ai  the  port  of  arrival  gave  notice  of  his  claim  at  the  custom- 
house, by  a  memorandum  on  the  certificate  of  enrolment,  the 
ship  being  then  in  possession  of  the  attaching  officer.  Held,  the 
mortgagee  had  a  good  tide;  that  a  mortgagee  is  not  bound  to 
follow  the  vessel  from  port  to  port,  but  may  lawfully  await  her 
return  to  the  port  where  she  belongs,  and  where  the  transfer  was 
made  ;  and  that  notice  at  the  custom-house  was  equivalent  to  a 
demand,  as  an  actual  demand  would  be  useless,  because  the 
ship  was  then  in  the  officer's  hands.  The  clause  in  tlie  instru- 
ment, authorizing  the  mortgagor  to  keep  possession,  was  not 
fraudulent,  being  consistent  with  the  expressed  trust,  and  giving 
him  no  false  credit.(l) 

9.  On  the  1 1th  of  August,  one  eighth  of  a  vessel  at  sea,  be- 
lontring  to  the  port  of  Hyannis,  was  sold  to  a  purchaser  at  Nan- 
tucket. On  the  22d  she  arrived  at  IT,  but  without  the  vendee's 
knowledge,  and  on  the  29th  sailed  on  a  new  voyage.  Septem- 
ber 16th,  she  returned  to  H,  and  was  attached  the  next  day  by 
creditors  of  the  vendor.  The  vendee  came  from  Nantucket  by 
the  first  packet  after  hearing  of  the  arrival  of  the  vessel,  reach- 
ed H  September  23d,  and  replevied  her  in  the  present  suit. 
Held,  judgment  should  be  rendered  for  the  plaintiff.  The  law 
did  not  require  him  to  have  an  agent  at  H  to  take  possession  ; 
and  as  the  sale  was  only  of  a  share  in  the  vessel,  possession  was 
comparatively  unimportant,  as  negativing  fraud. (2) 

10.  The  plaintitr  agreed  to  take  a  conveyance  of  a  ship  from 
one  A,  if  he  should  conclude  to  execute  such  conveyance,  and 
that  the  bill  of  sale  should  be  left  with  B  for  the  plaintiff's  use. 
On  the  16th  day  of  the  month,  a  bill  of  sale  was  accordingly 
made,  and  delivered  to  B,  and  on  the  19th  the  bill  of  sale  and 
the  ship  were  taken  possession  of  by  the  plaintiff,  as  soon  as 
practicable  after  the  arrival  of  the  latter  at  his  place  of  residence. 
On  the  18th,  the  ship  was  attached  by  creditors  of  A.'  Held, 
the  plaintiff  had  a  title  which  should  prevail  over  the  attach- 
ment.(3) 

(1)  Badlam  v.  Tucker,  1  Pick.  389. 

(2)  Joy  V.  Sears,  9  Pick.  4. 

(3)  Buffingtoii  V.  Curtis,  15  Mass.  528. 

17 


130  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

11.  Where  a  ship  at  sea  is  sold  by  the  owner  at  home,  and 
also  by  the  master  under  an  authority  carried  out  by  him  ;  the 
purchaser  on  shore  is  entitled  to  the  proceeds  in  the  master's 
hands.  So  in  case  of  similar  sales  of  goods,  the  master  becomes 
an  agent  of  the  vendee,  upon  receiving  notice  of  the  sale.(l) 

12.  It  has  been  contended  that  this  rule  {as  to  the  sale  of  ships 
at  sea)  applies  to  ships  only,  being,  with  regard  to  them,  a  rule 
oi  necessity,  inasmuch  as  they  are  usually  at  sea.  But  it  is  now 
settled,  that  the  same  principle  applies  to  a  cargo  as  to  a  vessel, 
and  to  all  cases  of  sale,  whether  the  property  be  on  land  or  wa- 
ter, where  delivery  is  at  the  time  of  sale  impracticable.(2) 


Section  VI. — delivery  obtained  by  fraud. 

1.  A  fraudulent  vendee  gains  no  property  against  the  vendor. 
But,  as  possession  is  prima  facie  evidence  of  property,  if  the 
vendor  has  delivered  possession,  with  the  intent  that  the  proper- 
ty shall  pass  as  well  as  the  possession ;  a  bona  fide  purchaser  from 
the  first  vendee  shall  hold  the  goods.  The  principle  is,  that 
the  vendor  has  reposed  confidence  in  the  first  vendee,  and  thus 
enabled  him  to  commit  a  fraud  ;  and  therefore  the  equity  of  the 
second  purchaser  is  the  best.  (3) 

2.  After  delivery  of  goods  sold,  although  there  was  fraud  on 
the  part  of  the  vendee,  the  vendor  cannot  forbid  their  being  tak- 
en away,  or  maintain  trespass  against  the  party  taking  them. (4) 


Section  VII. — time  and  place  of  delivery. 

1.  Where  a  purchaser  of  goods  agrees  to  pay  fcr  them  upon 
delivery  at  a  certain  time  and  place ;   in  order  to  maintain  an  ac- 

(1)  Gardner  v.  Howlaiid,  2  Pick.  601,  2. 

(2)  Gardnerv.  Rowland,  2  Pick.  602.  2T.R.  4S5.    Ricker  v.  Cross,  5N.H.  571,  2. 

(3)  Per  Savage,  Ch.  J.,  Andrews  v.  Dieterich,  14  Wend.  34. 

(4)  McCarty  v.  Vickery,  12  John.  348. 


Sect.     VIL]  TIME    AND    PLACE    OF    DELIVERY.  131 

tion  for  the  price,  the  whole  must  be  delivered  or  tendered  ac- 
cordingly. Part-delivery  and  acceptance,  of  some  before  and 
some  after  the  time,  are  insufficient.(l) 

2.  But  where  one  agrees  to  deliver  property  at  a  certain  time 
and  place,  and  delivers  it  at  another  time  and  place  without 
objection  from  the  vendee;  the  latter  is  held  to  have  waived  aH 
objection  on  this  ground. (2) 

3.  Where  a  written  contract  for  the  sale  of  goods  specifies 
no  time  for  delivery,  in  an  action  for  not  delivering  them,  the 
seller  cannot  show  a  parol  agreement  that  they  should  be  taken 
away  immediately,  or  a  usage  that  where  the  delivery  is  to  be 
future,  the  contract  must  so  specify. (3) 

4.  Where  no  time  is  fixed  for  delivery  of  goods  sold,  the  law 
allows  a  reasonable  time.  If,  upon  demand  by  the  vendee,  no 
objection  is  made  as  to  time,  and  no  question  asked,  by  the 
vendor,  his  refusal  to  deliver  is  a  breach  of  contract. (4) 

5.  A  purchased  three  quarters  of  a  vessel ;  two  quarters  for 
himself,  and  the  other  quarter  for  B  by  virtue  of  a  prior  agree- 
ment with  him,  and  took  a  bill  of  sale  of  the  whole  to  himself, 
agreeing  to  convey  to  B  his  share.  B  demanded  a  bill  of  sale, 
but  A  refused  to  give  one.  A  made  out  but  did  not  tender  a 
bill  of  sale,  but  his  executrix,  the  plaintiff,  after  his  death,  and 
more  than  two  years  after  the  purchase,  tendered  it.  Held,  an 
action  did  not  lie  against  B  for  the  price.(5) 

6.  The  defendant,  having  contracted  with  one  A  to  build  for 
him  certain  machinery,  and  deliver  it  at  a  stipulated  time,  ac- 
cordingly contracted  with  the  plaintiff  to  build  the  machinery 
and  deliver  it  to  A,  and  to  pay  him  therefor  a  certain  price. 
The  property  was  delivered  by  the  plaintiff  to  A  after  the  time 
agreed  on,  the  delay  having  taken  place  at  the  request  of  A. 
Held,  the  defendant  was  liable  for  the  price,  if  he   assented   to 


(1)  Davenport  v.  Wheeler,  7  Cow.  231. 

(2)  Baldwin  v.  Farnsworlh,  1  Fairf.  414. 

(3)  Greaves  v.  Aslilin,  3  Camp.  -ilS. 

(4)  Blydenburgh  v.  Welsli,  Bal  i.  331. 

(5)  Higgins  V,  Chessman,  9  Pick.  7. 


132  DELIVERY    AND    ACCEPTANCE.  [Chap.     III. 

this  delay,  or,  knowing  of  A's  request,  did  not  expressly  dis- 
sent.(I)* 

7.  A,  having  contracted  with  B  to  deliver  him  pheasants  on 
the  12ih  of  October,  sent  them  to  the  coach-office  on  that  day, 
but  they  did  not  reach  B  till  afterwards.  Held,  a  compliance 
with  the  contract. (2) 

S.  An  agreement  for  the  sale  of  flax  provided  that  it  should 
be  sent  from  St.  Petersburgh,  not  later  than  the  thirty-first  day 
of  July,  either  for  Hull  or  London.  Before  this  day  arrived,  the 
flax  was  sent  from  Petersburgh  in  lighters,  and  put  on  board  a 
ship  at  Cronstadt ;  but  the  ship  did  not  sail  till  after  the  day. 
Held,  a  sufficient  compliance  with  the  contract.  (3) 

9.  Agreement  to  sell  certain  produce,  and  deliver  it  at  the 
house  of  the  vendee  within  a  feio  days.  In  an  action  brought 
by  the  vendee  for  non-delivery,  held,  he  must  prove  a  demand 
upon  the  vendor,  before  commencement  of  suit,  or  at  least,  that 
he  was  ready  and  willing  to  pay  for  the  property  at  the  place 
agreed. (4) 

10.  A  sold  to  B  a  quantity  of  fish,  to  be  delivered  at  one  of 
two  places,  at  the  option  of  the  vendor.  The  fish  were  left  at 
one  of  the  places  named,  but  no  notice  given  to  B,  and  conse- 
quently they  remained  there  till  they  were  spoiled.  Held,  the 
loss  must  fall  upon  the  vendor,  who  was  bound  to  have  notified 
the  vendee  of  the  place  of  delivery. (5) 

11.  Sale  of  a  quantity  of  barley,  with  an  agreement  to  de- 


(1)  Ftagg  V.  Dryden,  7  Pick.  62. 

(2)  Honeywood  v.  Stone,  1  Chit.  142. 

(3)  Busk  V.  Siicnce,  4  Camp.  329. 

(4)  Stone  V.  Case,  13  Wend.  283. 

(5)  Rogers  v.  Van  Hoesen,  12  John.  221. 

*  The  plaintiff  gave  a  bill  of  parcels  of  the  machinery  to  a  creditor,  as  security, 
but  -without  delivery.  Held,  no  title  passed  to  the  creditor,  and  therefore  the  transac- 
tion was  no  bar  to  the  present  action.  Nor  was  it  any  defence  to  the  action,  that 
after  delivery  to  A,  the  machinery  was  taken  upon  execution  against  the  plaintiff;  for 
A  might  bring|trespass  against  the  officer,  the  officer  call  upon  the  creditors  for  indem- 
nity, and  they,  m  turn,  sue  out  writs  of  scire  facias  upon  their  judgments  against  the 
plaintiff.  It  was  further  held,  that  a  mortgage  made  by  A  before  delivery  of  the 
whole  machmery,  was  no  evidence  of  acceptance,  being  only  a  declaration  of  his,  but 
not  proof  of  a  fact.     Flagg  v.  Dryden,  7  Pick.  32. 


Sect.    VII.]  TIME    AND    PLACE    OF    DELIVERY.  133 

liver  it  alongside  a  sloop  or  warehouse  at  G  or  K  at  the  option 
of  the  vendee,  in  all  April  or  sooner.  April  29,  the  barley  was 
brought  into  the  dock  at  G.  Four  days  after  this  were  neces- 
sary to  unload  and  deliver  it  to  the  vendee.  Held,  the  contract 
was  broken.(l) 

12.  The  plaintiff  agreed  with  the  defendant  to  purchase  from 
him  a  ship  then  in  course  of  building  in  Maine,  to  be  "  com- 
pleted and  delivered  as  soon  as  possible  at  F  village  or  B,  either 
of  these  places,  at  the  option  of  the  purchaser."  Held,  this 
contract  bound  the  defendant  to  notify  the  plaintiff  when  the 
vessel  was  completed,  that  he  might  make  his  election  as  to  the 
place  of  delivery  ;  and  that  having,  without  such  notice,  sold 
the  vessel  to  a  third  person,  the  defendant  was  liable  to  an  action 
for  damages.  The  law  required  him  to  give  notice,  because  he 
had  the  best  means  of  knowledge  on  the  subject.  Nor  was  the 
plaintiff  bound  to  employ  an  agent  to  observe  the  progress  of 
the  vessel.  It  was  further  held,  the  agreement  having  been 
made  in  December  1832,  the  vessel  launched  in  April  or  the  first 
of  May  1833,  and  the  suit  commenced  in  July,  that  the  plaintiff 
had  not  waived  any  right  by  delay.  lie  was  not  bound  to  make 
an  election  at  the  time  of  the  contract,  but  when  the  ship  was 
finished. (2) 

13.  A  agrees  to  sell  B  50  hogsheads  of  sugar,  double  loaves, 
at  100  shillings  per  cwt.,  to  be  delivered,  free  from  charge,  on 
board  a  certain  ship.  B  sells  to  C  by  the  same  description,  A 
assenting  to  the  sale.  The  sugar  was  not  delivered  or  re- 
weighed.     Held,  C  could  not  maintain  trover  against  A. 

14.  A  contract  for  the  sale  of  sugar  provided  that  it  should 
be  "  free  on  board  a  foreign  ship."  Held,  the  vendor  was  not 
thereby  bound  to  deliver  it  into  the  hands  of  the  vendee,  or  to 
transfer  it  to  his  name  in  the  books  of  the  warehouse  where  it 
lay ;  but  only  to  put  it  on  board  a  foreign  ship,  to  be  named  by 
the  vendee. (3) 

15.  Where  a  contract  provides  that  goods  sold  shall  be  upon 

(1)  Cox  V.  Todd,  7  D.  &  R.  131. 

(2)  Spooner  v.  Baxter,  16  Pick.  409. 

(3)  Wackerbarih  v.  Maison,  3  Camp.  270. 


134  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

interest  after  a  certain   time  from   shipment,   this   is  conclusire 
evidence  that  they  are  to  be  sent  by  water. (I) 

16.  A,  at  one  port,  ordered  goods  from  B,  at  another,  to  be 
sent  by  a  common  sea-carrier.  The  goods  exceeded  in  value 
51.,  and  the  carrier's  liability  was  notoriously  limited  to  this 
amount.  B  deposited  the  goods  at  the  receiving  house  of  the 
carrier,  with  directions  to  forward  them  to  their  place  of  desti- 
nation ;  but  they  were  not  specifically  entered  and  paid  for  ac- 
cordingly. Held,  B  had  implied  authority  and  it  was  his  duty 
thus  to  enter  them,  and  to  pay  any  extra  charge  requisite  for 
securing  the  carrier's  responsibility  ;  and,  not  having  done  so, 
and  ihe  goods  being  lost,  he  could  not  recover  the  price  of 
A.(2) 

17.  A  contract  was  made  in  London  to  sell  a  quantity  of 
tallow,  then  at  sea;  but  unless  it  should  arrive  in  a  certain  time, 
the  contract  to  be  void.  Held,  this  meant,  unless  it  should  ar- 
rive at  London.{3) 

18.  Contract  for  the  sale  of  goods  on  arrival  per  Fanny,  &lc. 
Held,  this  meant  the  arrival  of  the  goods  expected  by  this  ves- 
sel ;  and  that  if  the  vessel  arrived  without  the  goods,  and  through 
no  fault  of  the  vendor,  the  latter  was  not  liable  on  the  contract. 
The  parties  did  not  intend  to  enter  into  a  wager.  And  the  ex- 
pression in  the  agreement,  sale,  meant  merely  a  contract  for  a 
sale. (4:) 

19.  An  agreement  for  the  sale  of  goods  provided,  that  as 
soon  as  the  vendor  knew  the  name  of  the  ship  by  which  they 
were  to  be  forwarded,  he  should  inform  the  vendee  of  it.  The 
vendor,  residing  in  London,  was  informed  of  the  name  on  the 
twelfth,  but  did  not  communicate  it  to  the  vendee,  residing  at 
Hull  till  the  twentieth,  of  the  month.  Held,  the  condi- 
tion of  the  contract  was  broken,  and  the  vendee  not  bound  by 
it,  though  he  had  suffered  no  damage  from  want  of  the  above 
information. (5) 

(1 )  Whiting  V,  Fairand,  1  Conn.  60. 

(2)  Clarke  v.  Hutchins,  14  E.  475. 

(3)  Idle  V.  Thornton,  3  Camp.  274. 

(4)  Boyd  V.  Siffkin,  2  Camp.  326,327  n. 

(5)  Busk  V.  Spenccj  4  Camii.  329, 


Sect.    VII.]  TIME    AND    PLACE    OF    DELIVERY.  135 

20.  A  agreed  to  sell  B  fifty  tons  of  St.  Petersburgh  sound, 
clear  hemp,  at  .£59  per  ton,  to  be  shipped  from  St.  Petersburgh 
in  June  or  July  following,  and  information  to  be  given  of  the 
name  of  the  vessel,  as  soon  as  known.  If  the  vessel  did  not 
arrive  by  December  31,  the  contract  to  be  void.  September  5, 
A  gave  notice  that  fifty  tons  had  been  shipped  in  the  Lively. 
On  the  20ih  of  the  same  month,  A  claimed  the  right  (which 
however  was  denied  by  B)  of  making  up  the  deficiency,  if  any, 
from  another  ship.  September  20,  the  Lively  arrived,  bringing 
forty-four  tons,  twenty  tons  of  which  were  delivered  to  B,  the 
rest  being  shipped  at  St.  Petersburgh  to  other  persons.  Octo- 
ber 4,  the  remaining  thirty  tons  arrived  in  another  ship.  Held, 
the  only  material  parts  of  this  contract,  were  the  quantity,  qua- 
lity, price,  time  and  place  of  shipment  and  delivery,  but  it  did 
not  require  that  the  hemp  should  be  sent  in  one  ship;  that  as 
the  notice  of  Sept.  5  was  founded  on  a  mistake,  A  might  sup- 
ply the  deficiency  in  the  quantity  first  sent,  by  another  vessel ; 
and  that  he  was  bound  to  deliver  B  from  the  Lively  only  so 
much  as  was  ascribed  to  the  latter.(l) 


Section  VIII. — acceptance. 

L  Formerly,  a  delivery  of  goods  by  the  seller  was  sufficient 
to  take  the  contract  out  of  the  statute  of  frauds.  But  it  is  now 
clearly  settled,  that  in  order  to  satisfy  the  statute,  there  must  be 
a  delivery  of  the  goods  by  the  vendor,  with  an  intention  of  vest- 
ing the  right  of  possession  in  the  vendee  j  and  there  must  be  an 
actual  receiving  and  acceptance  by  the  latter,  with  an  intention 
of  taking  the  possession  as  owner.  The  word  accepted^  in  the 
act,  imports  that  each  party  do  something  to  bind  the  bargain. 
It  lies  upon  the  plaintiff  to  make  out  that  there  was  such  deli- 
very and  acceptance.  And  it  must  be  an  ultimate  acceptance, 
such   as  completely  affirms  the  contract.     It  is  necessary  that 

(1)  Thornton  V.  Simpson,  2  Marsh,  267.    6Taun.556. 


136  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

the  vendee  should  no  longer  have  it  in  his  power  to  object  to 
the  quantumox  quality  of  the  goods. (1)* 

2.  But,  it  seems,  if  the  buyer  take  away  the  goods  without  the 
seller's  assent,  the  buyer  himself  would  be   bound   by  the  bar- 

3.  Where  one  agrees  for  the  purchase  of  goods  abroad,  and 
they  are  put  on  board  a  ship  chartered  by  him,  but  he  refuses 
to  accept  them  ;  this  does  not  constitute  a  delivery  and  accep- 
tance.(3) 

4.  There  can  be  no  acceptance  or  actual  receipt  by  a  pur- 
chaser, unless  there  is  a  change  of  possession ;  and  unless  the 
seller  divests  himself  of  the  possession,  though  but  for  a  moment, 
the  property  remains  in  him.  (4) 

5.  It  is  said,  where  a  vendor  of  goods  has  ascertained  and  ap- 
propriated them,  and  the  vendee  has  assented  to  such  appropri- 
ation ;  the  property  passes  to  the  latter.  There  is  no  case  con- 
tradictory to  this  principle. (5) 

6.  In  Elmore  v.  Stone(6),  the  buyer  directed  expense  to  be 
incurred  ;  which  was  held  to  be  evidence  of  acceptance. 

7.  In  Chaplin  v.  Rogers, (7)  the  purchaser  of  hay  dealt  with 
it  as  his  own  ;  which  the  jury  thought  was  sufficient  evidence  of 
acceptance. 

8.  Where  a  vendor  declares  against  the  vendee  for  non  accep- 
tance of  the  goods  sold,  it  seems  the  question  of  acceptance  does 
not  arise.  (8) 

9.  A  agreed  with  B  to  make  certain  pew  pannels  for  the  lat- 

(1)  Baldey  v.  Parker,  2  B.  &  C.  44.  Phillips  v.  Bistolli,  2  lb.  513.  Tempest 
V.  Fitzgerald,  3  B.  &  A.  680.  Per  Heath,  J.,  Kent  v.  Huskinson,  3  B.  &,  P.  235- 
Hanson  v.  Annitage,  5  B.  &  A.  559.     Acebal  v.  Levy,    10  Bing.  384. 

(2)  Tempest  v.  Fitzgerald,  3  B.  &  A.  680. 

(3)  Acebal  v.  Levy,  10  Bing.  376. 

(4)  Carter  v.  Toussaint,  5  B  &  A.  859. 

(5)  Alexander  v.  Gardner,  1  Scott,  640. 

(6)  1  Taun.  458. 

(7)  1  E.  192. 

(8)  Acebal  v.  Levy,  10  Bing.  384. 

*  The  naked  possession  of  goods  for  a  short  time,  and  acts  of  ownership  in  rela- 
tion to  them,  such  as  loaning  and  offering  to  sell,  do  not  authorize  a  verdict  of  a  trans- 
fer, unless  accompanied  by  some  acquiescence  or  recognition  on  the  part  of  the  own- 
er.   Tompkins  v.  Haile,  3  Wend.  406. 


Sect.    VIII.]  ACCEPTANCE.  137 

ter,  to  be  paid  for  on  delivery.  The  pannels  were  brought  to 
the  meeting-house,  while  B  was  absent  from  town.  The  build- 
ing committee  made  objections  to  them,  but  they  were  left  at 
the  [meeting-house,  and  piled  separately  from  other  lumber. 
Held,  there  was  no  legal  delivery.(l) 

10.  By  the  conditions  of  an  auction  sale,  the  purchaser  was 
to  pay  30  per  cent,  upon  the  price,  on  being  declared  the  high- 
est bidder,  and  the  residue  before  the  goods  were  removed.  A 
lot  was  knocked  down  to  A  and  immediately  delivered.  He 
kept  it  three  or  four  minutes,  then  stated  that  he  had  mistaken 
the  price,  and  refused  to  retain  it.  No  part  of  the  price  was 
paid.  Held,  it  was  a  question  for  the  jury,  whether  the  seller 
had  delivered  and  the  buyer  actually  accepted  the  goods,  with 
the  mutual  intention  of  transferring  the  right  of  possession. (2)* 

11.  Goods  of  the  value  of  £141  were  made  to  order,  and  re- 
mained in  the  possession  of  the  vendor,  at  the  request  of  the 
vendee,  with  the  exception  of  a  small  part,  which  the  vendee 
took  away.  Held,  there  was  no  sufficient  acceptance  of  the  re- 
sidue of  the  goods, (3) 

12.  A  purchased  of  B,  a  trader,  several  articles,  at  distinct 
prices,  each  under  £10,  but  the  whole  amounting  to  <£70.  A 
marked  with  a  pencil  some  of  the  articles,  saw  others  measur- 
ed, and  helped  to  cut  off  others.  He  then  requested  that  an 
account  of  the  goods  might  be  sent  to  him,  which  was  done, 
loo-ether  with  the  goods,  but  he  refused  to  accept  them.  Held, 
the  contract  was  an  entire  one  and  within  the  Statute  of 
Frauds,  and  that  there  was  no  delivery  and  acceptance  to  take 
the  case  out  of  the  statute,  and  sustain  an  action  for  goods 
sold.  It  was  remarked  by  Bayley,  J.,  upon  the  question  what 
interval  of  time  must  elapse  between  the  purchase  of  different 
articles  in  order  to  make  the  contract  separate,  that  if  the  pur- 

(1)  Woodbury  v.  Lang,  8  Pick.  543. 

(2)  Phillips  V.  Bistolii,  2  Barn.  &  Cr.  511. 

(3)  Thompson  v.  Macaroni,  3  B.  &  C.  1. 


*  It  was  said  by  the  Court,  that  the  evidenca  of  delivery  and  acceptance  was  very 
sli''ht.  The  deposit  not  having  been  paid,  the  seller  probably  had  not  intended  to 
part  with  all  control  over  the  goods.  And  the  short  interval  for  which  the  seller  kept 
possession  was  the  only  fact  showing  an  actual  acceptance. 

18 


138  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

chaser  went  away  after  purchasing  one,  and  returned  soon 
enough  to  warrant  the  supposition  that  the  whole  was  intended 
to  be  one  transaction,  it  would  be  held  one  entire  contract. 
Holroyd,  J.  remarked  that  the  statute  applies,  where  the  con- 
tract, either  at    the  commencement  or  conclusion,   amounts     to 

^IO.(I) 

13.  A  bargained  and  sold  to  B  in  A's  farm-yard  a  stack  of 
hay  there  standing,  and  B  afterwards  sold  part  of  it  to  C,  who 
took  it  away  without  the  knowledge  and  against  the  direction  of 
B.  Held,  these  facts  authorized  the  jury  to  presume  a  delivery 
to  B  and  an  acceptance  by  him,  which  took  the  case  out  of  the 
Statute  of  Frauds,  and  sustained  an  action  by  A  for  goods  sold 
and  delivered. (2) 

14.  The  plaintiff  sold  a  horse  to  the  defendant.  No  time  was 
fixed  for  payment.  The  horse  was  fixed  in  the  presence  and  with 
the  approbation  of  the  defendant,  but  was  to  remain  with  the 
plaintiff  twenty  days,  and  be  no  charge  to  the  defendant.  At  the 
expiration  of  this  time,  he  was  sent  to  grass  by  order  of  the  de- 
fendant, but  entered  as  belonging  to  the  plaintiff.  Held,  there 
was  no  acceptance,  and   an  action  for  the  price  did  not  lie. (3) 

15.  A,  residing  in  the  country,  ordered  from  B  in  the  city 
certain  plough-castings,  to  be  forwarded  by  canal.  A  portion 
of  them  only  were  sent,  and  those  by  land  conveyance,  at  a 
greater  expense  than  would  have  been  incurred  in  the  mode 
agreed  on.  Held,  B  could  not  recover  the  price  of  those  sent, 
without  proving  an  acceptance  by  A,  and  that  this  was  a  ques- 
tion for  the  jury.  Clear  evidence  that  the  goods  came  to  the 
hands  of  A,  would  be  sufficient  proof  of  acceptance,  unless  re- 
butted by  showing  a  refusal  and  notice  thereof.  On  the  con- 
trary, it  was  proved,  that  the  property  never  came  to  A's  pos- 
session. So  if  a  bill  of  the  goods  had  been  sent  and  received, 
this  would  sustain  the  action,  unless  A  had  given  express  notice 
of  non-acceptance. (4) 

16.  A,  a  purchaser,  verbally  agreed  at  a  public  market  with 

(1)  Baldey  v.  Parker,  2  Barn.  &  C.  37. 

(2)  Chaplin  v  Rogers,  1  E.  192. 

(3)  Carter  v.  Toussaint,  5  B.  &  A.  856. 

(4)  Corning  v.  Colt,  5  Wend.  253. 


Sect.  VIII.]  ACCEPTANCE.  139 

the  agent  of  B,  the  seller,  to  purchase  twelve  bushels  of  tares, 
then  in  B's  posseasion,  being  part  of  a  larger  quantity  in  bulk, 
to  remain  in  B's  possession  till  called  for,  A  sample  was  offer- 
ed to  A,  but  he  declined  accepting  it,  having  seen  the  tares 
upon  B's  land.  The  agent,  upon  returning  home,  measured  the 
twelve  bushels,  and  set  them  apart  for  A,  to  be  delivered  to  him 
on  demand.  Held,  if  A  had  once  accepted,  he  could  not  ob- 
ject, though  the  goods  should  not  conform  to  the  sample ;  but 
he  might  make  any  objection  at  the  time  when  they  were  ten- 
dered to  him  for  acceptance;  and  that  in  this  case  there  had 
been  no  acceptance,  and  the  action  did  not  lie.  It  was  further 
held,  that  the  measuring  of  the  goods  did  not  constitute  an  ac- 
ceptance, whether  done  by  the  seller  as  part  of  the  contract  or 
by  his  agent,  in  compliance  with  a  request  from  A  ;  for  this 
would  authorize  the  agent  only  to  measure  the  goods,  not  to 
accept  them.(l) 

17.  A  ordered  from  B  a  ruling-machine,  to  be  manufactured 
by  B,  without  any  agreement  as  to  the  price.  Upon  completion 
of  the  machine,  A  paid  money  on  account,  admitted  it  was  made 
to  order,  and  requested  B  to  send  it  home  to  him,  but  refused 
to  pay  the  price  demanded.  B  refused  to  deliver  the  machine 
without  payment  in  full  of  this  price,  and  gave  orders  for  the 
commencement  of  a  suit  to  recover  it.  A  agreed  to  make  a 
settlement,  if  time  were  allowed  him.  Held,  these  facts  showed 
an  acceptance  of  the  machine,  and  sustained  a  suit  for  goods 
bargained  and  sold. (2) 

18.  A  agreed  to  buy  a  horse  from  B  for  cash,  and  take  him 
away  within  a  certain  time.  About  the  end  of  this  period,  A 
rode  the  horse,  and  gave  directions  as  to  his  treatment,  but  re- 
quested B  to  keep  him  longer,  saying  that  he  would  at  the  end 
of  this  time  take  and  pay  for  the  horse.  B  assented  to  this  pro- 
position. Before  the  horse  was  taken  or  paid  for,  he  died. 
Held,  there  was  no  acceptance,  and  no  action  would  lie  for  the 
price.  The  delivery  and  payment  in  this  case  were  to  be  con- 
current acts.     Hence  the  bargain  was  at  first  a  mere  contract, 


(1)  Flow  !  V.  Palmor,  3  B.  &  A.  321. 

(2)  Elliott  ▼.  Pybus,  10  Bing.  512. 


140  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

and  if  A  had  rode  away  the  horse   without  payment,  B   might 
have  had  trover  against  him.(l) 

19.  The  agent  of  A,  a  drysalter  in  London,  called  on  B,  a 
carpet-manufacturer  at  Kidderminster,  for  orders  in  his  busi- 
ness. B  ordered  a  quantity  of  cream  of  tartar,  and  ofTcred  to 
lake  a  quantity  of  lac-dye  at  a  certain  price.  The  agent  said 
that  this  was  too  low,  but  he  would  write  to  A  on  the  subject, 
and  if  B  did  not  hear  from  him  in  one  or  two  days,  his  (B's) 
offer  should  be  considered  as  accepted.  A  did  not  write  to  B, 
but  sent  both  the  cream  of  tartar  and  the  lac-dye.  Held,  the 
contract  for  the  lac-dye  was  not  complete,  till  the  expiration  of 
the  time  allowed  to  A  for  deliberating  upon  B's  proposition  , 
hence  the  order  for  the  two  articles  could  not  be  considered  as 
a  joint  one,  and  acceptance  of  part  was  not  an  acceptance  of 
the  whole. (2!) 

20.  To  an  action  for  the  price  of  a  fire-engine  sold  by  the 
plaintiff  to  the  defendant,  the  latter  pleaded  the  Statute  of 
Frauds.  The  plaintiff  replied,  an  acceptance  of  the  engine. 
The  evidence  was,  that  after  the  sale  the  defendant  took  a  third 
person  to  look  at  the  engine,  and  mentioned  who  would  be 
likely  to  purchase  it ;  that  he  said  to  another  person^  "  I  know 
what  I  am  going  to  do  with  it;"  and  to  another,  "I  have  a 
concern  in  the  engine.''  Held,  it  was  a  question  for  the  jury, 
whether  the  defendant  had  treated  and  dealt  with  the  article  as 
his  ;   and  if  so,  judgment  must  be  for  the  plaintiff.(3) 

21.  Action  by  A  against  B  for  the  price  of  a  quantity  of 
cider.  B  verbally  contracted  for  the  cider  at  his  (B's)  house. 
It  was  of  good  quality,  and  was  sent  by  wagon  to  B's  house, 
but  he  refused  to  take  it  in,  and  deposited  it  in  the  neighboring 
warehouse  of  a  third  person.  B  never  notified  A  of  his  refus- 
al to  receive  the  cider,  nor  did  he  send  it  back.  Held,  the  ac- 
tion did  not  lie,  for  want  of  an  unequivocal  acceptance  or  a 
contract  in  writing. (4) 

22.  A,  residing  in  Yorkshire,  ordered  two  chests  of  tea  from 

{\)  Tempest  v.  Filzgerald,  3  B.  &  A.  680. 

(2)  Price  V.  Lea,  1  B.  &  C.  156. 

(3)  Baines  v.  Jevons,  7  C.  &  P.  288. 

(4)  Nicholle  v.  Plume,  \  Carr.  &  P.  27?. 


Sect.    VIII.]  ACCEPTANCE.  141 

B  in  London.  The  teas  were  forwarded  to  a  certain  wharf,  to 
be  sent  by  sea.  Goods,  previously  sold  by  B  to  A,  had  been 
received  for  A  at  this  wharf.  The  vessel  carrying  the  teas  was 
lost,  and  no  invoice  was  sent,  till  after  the  loss  had  been  heard 
of  It  was  not  proved,  whether  the  bargain  was  parol  or  writ- 
ten. Held,  A  was  not  bound  by  a  mere  constructive  accep- 
tance.(l) 

23.  A  verbally  agreed  to  sell  B  twenty  hogsheads  of  sugar, 
from  a  larger  quantity  which  he  had  in  bulk.  Four  hogsheads 
were  filled,  delivered  and  accepted.  A  then  filled  sixteen 
more,  and  requested  B  to  take  them  away,  which  he  promised 
to  do.  Held,  the  acceptance  of  the  four  hogsheads  was  an  ac- 
ceptance of  a  part  of  the  whole  twenty  ;  that  the  property  in 
the  remaining  sixteen  passed,  subject  to  a  lien  for  the  price,  so 
that  any  loss  would  fall  upon  the  vendee ;  and  that  A  miwht  re- 
cover in  an  action  for  goods  bargained  and  sold. (2) 

24.  A  verbally  ordered  from  B  a  bale  of  sponge,  at  lis.  per 
lb.  The  sponge  was  sent,  but  A  returned  it,  writing  that  he  had 
examined  the  article,  that  it  was  worth  only  6s.,  and  he  had 
therefore  sent  it  back.  Held,  this  letter  was  no  acceptance  of 
the  sponge,  unless  refusal  to  accept  could  be  so  construed  ;  that 
it  was  merely  an  affirmance  of  some  order  for  some  sponge,  and 
the  article  was  returned  as  soon  as  received  and  examined,  as 
not  being  the  kind  wanted  ;  and,  so  far  as  appeared  from  the 
letter,  it  might  have  been  sent  only  on  speculation. (3) 

25.  A  contracted  with  B  to  deliver  him  certain  manufactur- 
ed articles  of  a  particular  description,  at  a  particular  time  and 
place.  Articles  corresponding  to  the  specified  quantity  and  de- 
scription, but  not  to  the  quality  agreed  for,  were  delivered  at  the 
time  and  place  named.  The  vendee  used  a  part  of  the  goods, 
and  paid  a  part  of  the  price  without  objection,  till  a  question  was 
raised  concerning  payment.  Held,  the  facts  amounted  to  an  ac- 
ceptance, and  a  waiver  of  any  claim  for  damages  or  a  reduction 
of  the  price,  on  account  of  open  and  apparent  defects.  (4) 


(1)  Hanson  v.  Armitage,  1  Carr.  &.  P.  273  n.     5  B.  &.  A.  667. 

(2)  Rohde  V.  Thwaites,  6  B.  &  C.  388. 

(3)  Kent  v.  Huskinson,  3  B.  &.  P.  233. 
(4)   Wilkins  v.  Stevens,  8  Verm  214. 


142  DELIVERY    AND    ACCEPTANCE.  [Chap.    III. 

2G.  A  built  a  wagon  for  B.  B  employed  a  smith  to  affix  the 
iron-vvorlt,  who  assisted  A's  men  in  doing  it,  and  charged  B  for 
his  services.  B  also  employed  a  tilt-maker  to  tilt  the  wagon. 
The  wagon  remained  in  possession  of  A  during  these  operations, 
and  was  left  with  A  to  be  finished  after  they  were  completed. 
Held,  these  facts  did  not  show  any  acceptance  of  the  wagon.  By 
St.  9  Geo.  4,  ch.  14,  the  17th  section  of  the  Siatute  of  Frauds, 
requiring  acceptance  in  default  of  a  written  agreement,  is  extend- 
ed to  executory  contracts,  or  those  relating  to  goods  not  yet  in 
existence.  In  this  case,  B  procured  the  work  to  be  done  upon 
the  wagon,  while  it  was  in  progress,  and  incapable  of  delivery. 
Had  A's  work  upon  it  been  done,  and  the  workmen  employed 
by  B  merely  finished  the  wagon,  the  case  might  have  been  dif- 
ferent. But,  under  the  circumstances,  A  retained  a  lien  upon  it, 
and  there  was  no  evidence  of  any  intention  to  deliver  or  accept. 
Held,  A  could  not  sustain  an  action  for  the  price. (1) 

27.  A  agreed  to  purchase  of  B  one  hundred  sacks  of  good 
English  seconds  flour,  at  45s.  per  sack.  Twenty-two  sacks 
were  delivered,  and  A  then  gave  notice  that  the  flour  was  un- 
saleable and  bad,  and-  that  the  vendor  should  take  it  away  im- 
mediately ;  but  did  not  return  it.  Whether  there  was  an  ac- 
ceptance,  qu.(2) 

28.  A,  a  horse-dealer,  contracted  with  the  servant  of  B  at  a 
fair,  to  purchase  a  horse  for  .£45,  to  be  delivered  to  A  in  about 
one  hour.  This  time  having  elapsed,  the  servant  called  on  A 
at  his  stables,  to  know  whether  he  was  ready  to  receive  the 
horse.  A  said  he  should  have  a  vacant  stall  in  about  an  hour, 
and  would  then  take  the  horse,  but,  before  the  expiration  of  that 
time,  refused  to  do  it.  On  the  next  day,  the  horse  was  return- 
ed to  B.  B  sent  him  back  to  A,  who  refused  to  receive  him. 
No  money  was  paid  at  the  sale  of  the  horse,  but  A  offered  a 
shilling  to  the  servant,  which  was  not  accepted.  A  told  C  that 
he  had  bought  the  horse,  that  he  would  suit  him,  and  that  he 
(A)  would  take<£5  for  buying  him.  After  the  sale,  and  during 
the  time  fixed  for  delivery  at  the  stables,  A  took  the  horse  from 


(1)  Ma\)erly  v.  Slu-ppard,  3  Moo.  &.  Scott,  436. 

(2)  Jackson  v.  Lowe,  7  Moo.  219. 


Sect.    VIII.]  ACCEPTANCE.  143 

the  stables,  when  C  discovered  a  defect  in  him,  and  refused  to 
purchase.  Held,  it  was  a  question  for  the  jury,  whether  these 
facts  constituted  a  delivery  to,  and  acceptance  by  A,  so  as  to 
take  the  case  out  of  the  Statute  of  Frauds  ;  whether  any  thing 
remained  to  be  done  by  the  seller,  or  whether  what  he  had  done 
through  his  servant,  constituted  a  delivery. (1) 

(1)  Blenkinsop  v.  Clayton,  1  Moo.  328. 


CHAPTKR  IV. 


THE  PRICE  OF  GOODS  SOLD,  AND  PAYMENT 
THEREOF. 

1.  Price  necessary  to  a  sale — how  it  may  he  fixed — reasonable 

•price. 
6.  Payment — hy   negotiable  securities,  tchich   are  dishonored ; 
whether  the  vendor  may  sue  for  the  price,  or  reclaim  the 
goods,  Sfc. 
19.  Payment  by  other  securities. 
21.  Sale  from  debtor  to  creditor. 
23.  Agreement  to  pay  by  bill,  S^c, — how  construed. 

1.  A  price  is  one  of  the  essential  elements  of  the  contract  of 
sale.  And  the  price  must  be  certain  or  capable  of  being  made 
certain.  If  left  to  be  fixed  by  the  vendor  or  vendee,  the  sale 
is  void.     But  it  may  be  left  to  be  settled  by  arbitration. (1)* 

2.  It  is  to  be  understood,  however,  that  where  an  agreement 
for  the  sale  of  goods  mentions  no  price,  and  the  vendee  accepts 
them,  the  law  implies  a  reasonable  price  and  sustains  the  bar- 

(1)  Ayliffe's  Civ.  Law,  p.  4,  tit.  4.    4  Pick.  L89.     Shep.  Touch.  224. 

*  "Pretium  autem  constitui  oportet,  nam  nulla  emptio  sine  pretio  esse  potest."  But 
"  id  certum  est,  quod  certum  reddi  potest."  "  Quoties  sic  composita  sit  venditio, 
quanti  ille  sestimaverit,  sub  hac  conditione  staret  contractus,  et  stet  siquidem  ille,  qui 
nominat'js  est,  pretium  definierit,  tuncomnimodo  secundum  ejus  Eestimationem  et  pre- 
tium persolvatur,  et  res  tradatur,  et  venditio  ad  eflectuni  perducatur. — Just.  3,  24.  1. 


Chap.    IV.]  THE    PRICE    OF    GOODS    SOLD,    &C.  145 

gain  ;  for  otherwise  the  vendee  might  keep  the  goods  without 
payment.  Whether  the  same  principle  applies,  where  the  con- 
tract is  still  executory,  and  the  goods  remain  in  the  possession 
or  under  the  control  of  the  vendor,  qu.(l) 

3.  A  memorandum  for  the  sale  of  goods  is  legally  valid  not- 
withstanding the  Statute  of  Frauds,  though  no  price  be  named, 
if  none  were  agreed  upon.  But  if  a  written  contract  of  sale 
mentions  no  price,  and  it  is  proved  by  parol  evidence  that  a 
price  was  agreed  on,  the  writing  cannot  be  used  as  evidence  of 
the  agreement  between  the  parties.  The  law  requires  a  note  in 
writing  of  the  bargain,  that  is,  of  the  whole,  bargain. (2) 

4.  So,  where  it  is  proved  by  parol  evidence,  that  there  was 
an  agreement  for  a  sale  of  goods  at  a  specified  price,  the  ven- 
dor cannot  recover  upon  a  quantum  valebant  count,  by  offering 
in  evidence  a  writing  which  contains  no  provision  as  to  the 
price.(3) 

5.  A  count,  alleging  a  sale  "  at  the  then  shipping  price  at  G 
in  Spain,"  is  not  sustained  by  a  written  agreement,  which  is 
silent  as  to  the  price.  From  such  a  writing  the  law  would  infer 
a  reasonable  price,  by  which  is  meant  such  an  one  as  the  jury 
would  judge  to  be  fair,  but  which  may  greatly  differ  from  the 
current  price. (4) 

G.  With  regard  to  the  payment  for  goods  purchased,  a  very 
common  method  is  by  giving  bills  of  exchange  or  other  nego- 
tiable securities  for  the  price.  Upon  the  effect  of  such  pay- 
ment, many  cases  are  to  be  found  in  the  books. 

7.  The  purchaser  of  goods  gave  bills  of  exchange  in  pay- 
ment, which  the  vendor  negotiated,  but  they  afterwards  came 
back  into  his  hands.  In  an  action  brought  by  the  vendor  for 
the  price,  it  appeared  that  the  bills  protested  were  in  possession 
of  his  agent.  Held,  the  plaintiff  might  recover  without  deliver- 
ing up  the  bills.     The  defendant  might  have  relief  in  Equity, 

(1)  Acebal  v.  Levy,  4  M.  &  Scott,  217.  10  Bing.  382.  See  Webber  v.  Tivill,  2 
Saun.  121,11.2. 

(2)  Hoadly  v.  Maclaine,  4  Moo.  &.  Scott,  340.  Elmore  v.  Kingscote,  SB.  &  C 
583. 

(5)  Cooper  V.  Small,  la  E.  103. 
(4)  Acebal  r.  Levy,  10  Bing.  382,  3. 

19 


.  KicE  OF  GOODS  SOLD,  &c.         [Chap.  IV. 

^  amount  of  the  verdict  into  court,  and  move  a  stay  of 
.>ution,  till  the  bills  sliould  be  delivered  up.(l) 

8.  Goods  were  sold,  to  be  paid  for  by  a  bill  drawn  upon  the 
agent  of  the  vendee.  At  the  maturity  of  the  bill,  the  agent 
having  no  funds,  it  was  renewed  without  notice  to  the  vendee. 
Held,  this  was  no  discharge  of  the  latter,  but  he  was  still  liable 
for  the  price  of  the  goods.  The  agent  stood  in  nature  of  a 
surety,  and  it  was  for  the  benefit  of  the  vendee  himself  to  have 
the  bill  renewed. (2) 

9.  The  vendee  of  goods  accepted  a  bill  of  exchange  for  the 
price,  which  was  negotiated  by  the  vendor.  The  indorsee  of 
ths  bill  recovered  judgnient  against  the  purchaser,  but  did  not 
take  out  execution.  The  vendor  himself  took  up  the  bill,  and 
received  a  mortgage  from  the  vendee  as  security,  but  derived  no 
money  therefrom.  Held,  these  facts  did  not  constitute  ^  pay- 
ment io  the  vendor,  showing  merely  a  judgment,  without  satisfac- 
tion.(3) 

10.  Goods  sold  were  paid  for  by  a  bill  of  exchange  at  one 
mon'h  from  sight,  given  by  the  banker  of  the  vendee  for  an 
amount  exceeding  the  price  of  the  goods,  the  vendor  paying 
the  difference  in  cash.  The  bill  being  dishonored,  held,  the 
vendor  might  recover  the  agreed  price. (4) 

11.  A  broker  sold  to  the  defendant  three  hundred  barrels  o^ 
flour,  on  accouni  (  f  the  plaintiff,  at  88  per  barrel,  which  was  a 
fair  price.  The  flour  had  not  arrived  at  the  time  of  sale,  but 
was  daily  expected.  The  plaintiff,  having  been  absent,  upon 
his  return,  offered  to  deliver  the  flour,  but  the  defendant  declin- 
ed receiving  it.  He  however  said  afterwards  that  he  would  take 
and  pay  for  it,  and  gave  orders  that  it  be  sent  to  his  store.  The 
flour  was  placed  on  the  dock  and  ready  for  delivery.  The  de- 
fendant directed  tie  plaintiff  to  send  it  to  his  store,  saying,  that 
he  would  draw  his  check  in  payment ;  but  the  plaintiff  refused 
to  have  the  flour  removed  without  payment  in  cash.  Accord- 
ingly, it  was  neither  delivered  nor  paid  for,  and  was  re-sold  by 
another  broker   for  $6,50  per   ban  el,  the  price  having   fallen 

(1)  Hadwen  v.  Mendisabal,  2  C.  &  P.  20.     10  Moore,  477. 

(2)  Clarke  v.  Noel,  3  Camp.  411. 

<3)  Tarlelon  v.  Allhusen,  2  Ad.  &-  El.  32, 
(4)  Fry  v.Hil',  7Taun.  397. 


Chap.    IV.]  THE    PRICE    OF    GOODS    SOLD,    &C.  147 

since  the  former  contract.  In  an  action  for  refusing  to  receive 
the  flour  and  to  recover  the  difference  between  the  two  prices  ; 
held,  under  the  circumstances,  the  delivery  and  payment  were 
to  be  simultaneous  acts  ;  that  the  check  of  the  vendee  could  no 
more  be  considered  as  payment  than  his  note,  inasmuch  as  he 
might  have  no  funds,  or  the  bank  miifht  have  good  reason  for 
dishonoring  the  draft ;  and  therefore  that  the  action  might  be 
sustained. ( I) 

12.  The  traveler  of  A,  residing  in  London,  called  upon  B,  a 
debtor  of  A,  in  the  country,  for  payment ;  and,  being  unable  to 
obtain  money  from  him,  consented,  upon  the  request  of  B,  to 
take  his  acceptance  for  the  amount.  The  traveler  accordingly 
wrote  an  entire  bill,  except  the  name  of  A,  the  drawer,  and  for- 
warded it,  accepted,  to  A,  telling  B  at  the  same  time  that  he 
thought  it  would  not  be  satisfactory  to  A.  A  retained  the  bill, 
but  did  not  s^gn  it  as  drawer.  The  traveler  had  no  authority 
to  sign  bills  for  A,  biti  was  in  the  habit  of  transmitting  them  in 
this  way,  to  avoid  the  risk  of  loss.  Before  maturity  of  the  bill, 
A  brings  an  action  upon  the  original  debt,  to  which  B  pleaded 
specially  the  drawing  and  acceptance  of  a  bill.  Held,  the 
above  facts  did  not  amount  to  the  drawing  of  a  bill,  or  sustain 
the  defendant's  plea.  The  traveler,  having  no  authority  to 
sign,  consequently  had  none  to  make,  the  bill ;  and  unless 
adopted  by  A,  it  could  not  be  regarded  as  drawn  by  him. (2) 

13.  To  an  action  for  goods  sold  and  delivered  the  defendant 
pleaded,  that  as  to  £0,  part  of  the  debt,  he,  the  defendant,  ac- 
cepted a  stamped  bill  for  £'20  ;  that  there  was  no  drawer  to  the 
bill;  that  he  accepted  it  in  part  for  the  debt  in  question,  and 
in  part  for  the  accommodation  of  the  plaintiff;  that  he  deliver- 
ed it  to  the  plaintiff,  who  received  it  in  payment  of  the  debt; 
and  that  the  bill  was  not  due  at  the  commencement  of  this  suit. 
The  plaintiff  replied,  that  the  bill  still  remained  in  his  hands, 
not  havmg  been  negotiated  or  paid,  and  without  any  drawer. 
Held,  the  plea  was  good,  and  the  replication  no  answer  to  it 
Whether  the  plea  would  be  good  on  demurrer,  qu.(3) 

(1)  Claikson  v.  Carter,  3  Cow.  84 

(2)  Vyse  v.  Clarke,  6  C.  &  P.  403 

(5)   S^mon  v.  Lloyd,  3  Dowl.P.  C.  313. 


148  THE  PRICE  OP  GOODS  SOLD,  &c.        [Chap.  IV. 

14.  Where  the  vendee  of  goods  agrees  to  pay  for  them  orj 
delivery,  and  gives  a  check,  wliich  he  has  no  reason  to  expect 
will  be  paid,  and  which  is  accordingly  dishonored  ;  this  is  a 
fraud,  and  no  property  passes.(l) 

15.  By  agreement,  the  vendee  of  goods  was  to  pay  for  them 
in  cash,  but  he  obtained  possession  from  the  servant  of  the  ven- 
dor by  means  of  a  check,  which  he  represented  as  equivalent 
to  money,  but  which  was  dishonored,  he  having  overdrawn  ma- 
ny months.  On  the  day  of  sale,  the  vendee  gave  to  a  prior 
creditor  a  warrant  of  attorney  for  a  judgment  against  himself, 
upon  which  the  goods  were  seized  in  execution.  Held,  it  seems, 
that  the  vendor  might  regain  his  goods  even  by  stratagem,  no 
property  having  passed ;  but  that  it  was  a  question  for  the  jury, 
as  determining  this  right,  whether  the  vendee  at  the  time  of  sale 
intended  not  to  pay  for  them. (2) 

16.  Where  a  person  has  given  a  bill  or  check  for  a  deposit 
at  an  auction  sale,  he  may  set  up  in  defence  to  a  suit  thereupon 
the  same  facts  upon  which  he  might  recover  it  back,  if  paid  in 
cash.(3) 

17.  But  where  a  vendor  receives  a  check  in  payment  and 
procures  the  money  upon  it,  he  is  estopped  to  deny  that  the 
check  was  given  in  full  satisfaction,  and  to  make  any  further 
claim  for  the  price. 

18.  A  was  indebted  to  B  for  goods,  the  price  of  which  was 
not  liquidated  by  agreement.  A  paid  a  part  of  the  debt,  and 
finally  stated  an  account,  drew  a  check  for  the  balance,  and  sent 
it  to  B,  who  objected  to  the  messenger  that  the  balance  was  too 
small,  but  received  the  check  and  procured  the  money.  In  a 
suit  brought  by  B  several  months  afterwards,  held,  he  was  es- 
topped as  to  the  amount  of  the  goods,  and  could  not  maintain 
the  action.  The  above  proceeding  was  equivalent  to  an  i'nsi- 
mul  computassent,  or  a  compromise.  The  complaint  made  by 
the  plaintiff  to  the  messenger  could  have  no  effect,  as  it  never 
was  communicated  to  the  defendant.  In  order  to  sustain  any 
further  claim,   the  check  should  have  been  rejected,  or  notice 

(1)  Hawse  V.  Crowe,  Ryan  &  M.  414. 

(2)  Bristol  V.  Wilsmore,  1  B.  &  C.  514.    2  D.  &  R.  755. 

(3)  Mills  V.  Oddy,  6  C.  &  P.  728. 


Chap.    IV.]  THE    PRICE    OF    GOODS    SOLD,    &  C.  149 

given,  that  it  was  received  only  as  part  payment.     A  being  con- 
cluded, B  must  be  so  also.(l) 

19.  Payment  is  sometimes  made  by  other  obligations  than 
neorotiable  securities,  as  in  the  following  cases,  by  mortgage  or 
recognizance.  To  an  action  for  the  price  of  a  chattel  sold  to 
the  defendant,  he  pleaded,  that  upon  the  sale  the  vendor  took  a 
mortgage  back,  and  upon  forfeiture  took  possession  of  the  ar- 
ticle for  the  purpose  of  disposing  of  it,  and  that  he  might  have 
done  so  and  retained  the  amount  due.  Held,  a  good  plea. 
Taking  possession  of  property  mortgaged  is  a  satisfaction  of 
the  debt,  if  the  former  is  equal  in  value  to  the  latter.  If  fairly 
sold,  and  for  a  sum  less  than  the  debt,  an  action  lies  for  the 
balance.  The  case  is  like  that  of  a  sale  by  the  mortgagee  of 
land,  under  a  power ;  if  the  price  equals  the  debt,  this  is  there- 
by paid  ;  if  less  than  the  debt,  an  action  lies  for  the  balance  ; 
if  more,  the  surplus  belongs  to  the  mortgagor.  A  re-entry 
alone,  without  any  sale,  is  payment,  if  the  property  is  of  suffi- 
cient value.  In  case  of  a  chattel,  the  mortgagee  gains  an  ab- 
solute title  upon  breach  of  condition. (2) 

20.  A  applied  to  B  to  purchase  goods,  and  offered  in  pay- 
ment a  recognizance  of  debt  entered  into  by  C,  who  was  at 
the  time  in  doubtful  credit,  paying  only  such  debts  as  he  chose 
to.  B  hesitated  to  take  the  recognizance,  but  finally  consented 
to  do  it,  if  C  or  his  wife  so  desired.  Thereupon  A  went  away, 
and  returned  the  next  day,  with  the  false  statement  that  C's 
wife  wished  B  to  take  the  recognizance.  A  few  days  after- 
wards, B,  discovering  the  fraud,  wrote  to  A  that  he  would  have 
nothing  to  do  with  the  recognizance,  but  that  he  (A)  must  come 
and  pay  for  the  goods  or  be  sued  ;  but  there  was  no  proof  how 
this  letter  was  sent,  or  whether  it  ever  reached  A.  In  the 
course  of  the  same  month,  A  sent  for  a  part  of  the  property 
purchased,  which  had  not  been  previously  taken,  but  B  refused 
to  deliver  it,  and  sent  back  word,  which  A  received,  that  he 
had  been  deceived,  and  should  bring  a  suit  for  the  part  already 
delivered,  unless  A  came  and  paid  for  it.  Eleven  months  after 
the  sale,  B  brings  an  action  for  goods  sold  and  delivered,  send- 

(1)  Davenport  v.  Wheeler,  7  Cow.  231. 

(2)  Case  v.  Boughton,  11  Wend.  106, 


150  THE    PRICE    OF    GOODS    SOLD,    &LC.  [Chap.  IV 

ing  back  the  recognizance  by  the  officer  who  served  the  writ. 
Held,  the  action  did  not  lie.  It  seems,  the  fact  that  the  writ 
was  made,  and  the  suit  therefore  commenced  before  giving  up 
the  recognizance,  would  be  a  sufficient  bar.(l) 

21.  Where  a  creditor  purchases  goods  from  his  debtor,  to  be 
paid  for  in  cash,  he  may  still  claim  to  offset  his  demand  to  a 
suit  for  the  price  of  the  goods.  The  prior  debt  is  treated  as 
a  virtual  payment  of  the  price. (2) 

22.  A  ordered  goods  from  B,  to  be  paid  for  in  cash  ;  but  in 
payment  he  returned  to  the  agent  of  B  an  acceptance  of  B,  which 
had  been  previously  dishonored.  The  agent  at  first  refused 
the  acceptance,  but  afterwards  took  it  to  B,  who  retained  it  in 
his  possession.  B  having  become  bankrupt,  his  assignees  bring 
an  action  for  the  price  of  the  goods  against  A.  Held,  the 
above  facts  were  equivalent  to  payment,  or  a  good  ground  for 
set-ofF,  there  being  no  fraud  ;  and  that  the  action  would  not 
lie.(3) 

23.  Where  a  bought  and  sold  note  states  that  payment  is  to 
be  made  by  bill,  generally,  the  vendor  cannot  be  allowed  to 
show  that  this  means  bi/  approved  bill.  And  if  this  construc- 
tion is  adopted,  the  expression  must  mean  a  bill  to  which  there 
is  no  reasonable  objection.  Otherwise,  the  vendor  might  reject 
it  according  to  his  interest  or  caprice,  while  the  vendee  would 
be  absolutely  bound. (4) 

24.  By  the  terms  of  an  auction  sale,  the  vendee  was  to  give 
approved  indorsed  notes  at  six  months.  It  seems,  the  vendor 
may  disapprove  and  reject  the  notes  offered,  unless  he  knows  or 
has  evidence  furnished  him,  that  they  are  good,  and  such  as 
a  prudent  and  discreet  man  would  accept  under  the  circum- 
stances of  the  case. (5) 

(1)  Norton  V.  Young,  3  Greenl.  30. 

(2)  Eland  v.  Karr,  1  E.  375.     See  Fair  v.  M'lver,  16  E.  130. 

(3)  Mayer  v.  Nias,  8  Moore,  275.     1  Bing.  311. 

(4)  Hodgson  V.  Davies,  2  Camp.  530.     Guier  v.  Page,  4  S.  <k  R,  1. 

(5)  Hicks  V.  Whittnoie,  12  Wend.  54S. 


CHAPTER  V. 


SALE  ON  CREDIT. 

1.  Credit  must  be  strictly  proved. 

2.  When  an  agreement  for  credit  is  not  binding. 

4.  Contract  of  sale  or  return. 

5.  When  a  credit  expires. 

7.  Agreement  to  pay  by  bill,  4*c.  on  time;  when  an  action  lies 

immediately. 
18.  Election  as  to  credit. 
25.   Commencement  of  suit,  time  of. 

1.  Where  an  action  for  goods  sold  and  delivered  is  resisted 
on  the  ground  of  an  unexpired  credit,  this  fact  must  be  made 
out  with  perfect  clearness,  before  the  Court  will  set  aside  the 
writ  on  motion.(l) 

2.  If,  after  the  sale  of  goods,  the  vendor  voluntarily,  with- 
out consideration,  gives  time  for  payment,  or  if  the  sale  is  not 
bona  fide,  notwithstanding  a  credit  in  the  first  instance  ;  a  suit 
may  be  brought  immediately. (2) 

3.  But  it  has  been  held,  that  where  goods  are  sold  on  credit, 
no  suit  lies  immediately  for  the  price,  though  they  were  purchas- 
ed, not  in  the  fair  way  of  trade,  but  to  be  immediately  re-sold 
at  an  under  price,  and  with  no  intention  of  paying  for  them. 
If  these  facts  prove  fraud,  no  property  passed  to  the  vendee,  and 

(1)  Lamb  v.  Pegg,  1  Dow!.  P.  C.  447. 

(2)  De  Symons,  v.  Minchwich,  1  Esp.  430. 


i52  SALE  ON  CREDIT.  [Chap,  V. 

the  vendor  might   maintain  trover  ;  but   by  bringing  assumpsit, 
he  affirms  the  contract,  of  which  the  credit  formed  a  part.(]) 

4.  Where  goods  are  furnished  on  a  contract  of  sale  or  return, 
and  no  time  is  mentioned,  a  reasonable  time  shall  be  allowed, 
taking  into  view  the  usurd  course  of  dealing  in  tliis  particular 
trade.  After  the  expiration  of  this  time,  the  party  furnishing 
the  goods  may  recover  the  price  in  an  action  for  goods  sold  and 
delivered. (2) 

5.  Where  a  certain  time  of  credit  is  fixed,  though  in  connec- 
tion with  other  acts  or  events  relating  to  the  vendee,  the  vendor 
may  bring  an  action  at  the  expiration  of  the  time,  whether  such 
acts  have  been  done,  or  such  events  have  happened,  or  not. 

G.  A  agreed  to  do  certain  work  for  B  by  a  certain  time,  pay- 
ment to  be  made  on  completion  of  the  work,  A  afterwards  ap- 
plied to  C  to  sell  him  goods,  stating  his  contract  with  B,  and 
desiring  C  to  wait  for  payment,  till  the  job  should  be  completed 
and  payment  made.  At  the  expiration  of  the  time  when  the 
work  was  to  be  finished,  C  demands  payment,  although  it  had 
neither  been  completed  nor  paid  for.  Held,  C  might  sustain  an 
action  for  the  price  of  the  goods.(3) 

7.  Where  payment  for  goods  sold  is  made,  or  agreed  to 
be  made,  by  bill  or  note  given  on  time,  and  such  instrument  is 
not  given,  or  fails  from  any  cause  to  be  an  effectual  security; 
the  question  often  arises,  whether  the  vendor  may  immediately 
maintain  an  action  upon  an  implied  contract  for  the  price.  Up- 
on this  subject,  the  cases  are  somewhat  contradictory. 

8.  In  case  of  a  sale  of  goods,  with  an  agreement  to  give  a  bill 
immediately,  payable  on  time  ;  if  the  bill  is  neither  given  nor 
demanded,  no  action  lies  for  goods  sold  and  delivered  before  the 
bill  agreed  for  would  become  due.  Till  then,  the  contract  is 
executory  ;  and  the  amount  to  be  paid  is  not  ascertained. (4) 

9.  But,  in  another  case,  the  vendee  of  goods  refused  to  accept 
a  bill  drawn  for  the  purpose  of  payment,  and  the  vendor  brought 
an  action,  declaring  upon  the  bill,  and  also  for  goods  sold   and 

(1)  Ferguson  v.  Carrington,  9  B.  &  C.  59. 

(2)  Bailey  v.  Gouldsniith,  Peake,  36. 

(3)  Dana  v.  Mason,  4  Vctin.  368. 

(4)  Hoskins  v.  Duperoy,  9  E.  498. 


Chap,    v.]  SALE    ON    CREDIT.  153 

delivered,  before  the  credit  on  the  bill  would  have  expired. 
Held,  the  plaintiff  had  the  right  to  treat  tire  bill  as  a  nullity,  and 
might  recover  on  the  latter  count;  and  that  he  need  prove  only 
a  presentment  to  the  vendee  for  acceptance,  without  showing  a 
protest  or  notice  to  the  drawer. (1) 

10.  It  is  said,  that  where  a  debtor  gives  a  bill  or  note  on  time 
for  the  debt,  no  action  lies  upon  the  debt  till  this  time  has  ex- 
pired. Otherwise,  where  the  instrument  is  of  no  value,  as  where 
it  is  a  bill,  drawn  upon  one  having  no  effects  of  the  drawer,  and 
who  refuses  acceptance.  In  such  case,  it  is  mere  waste  pa- 
per.(-2) 

11.  Agreement  to  pay  for  goods  by  a  bill  at  two  months,  to  be 
given  after  one  month  from  the  sale.  After  the  expiration  of 
three  months,  the  vendor  brings  a  suit  for  the  price.  Held,  the 
above  agreement  need  not  be  specially  declared  on. (3) 

12.  Sale  at  two  months'  credit,  to  be  paid  for  by  a  bill  at 
twelve  months.  At  the  expiration  of  fourteen  months,  an  ac- 
tion for  goods  sold  and  delivered  may  be  brought. (4) 

13.  Agreement  to  pay  for  goods  by  a  bill  at  three  months. 
The  vendee  refuses  to  accept  such  bill.  An  action  for  goods 
sold  and  delivered  does  not  lie  before  the  expiration  of  the  three 
months;  but  only  an  action  for  non-acceptance  of  the  bill. 
And,  it  seems,  even  after  the  three  months  have  expired,  the  ac- 
tion must  be  brought  upon  the  special  contract.  In  giving 
judgment  upon  this  case,  Ld.  Alvanley  stated  it  as  his  own  first 
impression,  that  where  a  special  agreement  is  collateral,  an  ac- 
tion lies  upon  the  general  counts.  The  contract  is  for  a  sale, 
with  condition  that  if  the  vendee  give  a  bill  at  two  months,  he 
shall  have  two  months'  credit.  The  condition  being  broken, 
the  vendor  is  remitted  to  his  original  action.  But  he  yielded 
this  opinion  to  the  weight  of  authority  the  other  way  (5) 

14.  A  person,  having  been  discharged  as  an  insolvent  debtor, 
afterwards  agreed  to  pay  for  goods   purchased   before  such  dis- 

(1  )  Hickling  T.  Harder,  1  Moore,  61.     7  Taiin.  312. 
(2)  Stedman  v.  Gooch,  1  E>p.  5. 
(S)  Heron  v.  Granger,  5  Esp.  269. 

(4)  Brooke  v  White,  1  N.  R.  330.     Marshall  v.  Poole,  13  E.  98. 

(5)  Lee  v.  Ri>don,  2  Mar<h.  490.     Diitton  v.  Solomonaon,  3  B.  &  P  5RJ. 

20 


154  SALE  ON  CREDIT.  [Chap,  v.] 

charge,  partly  in  cash,  and  partly  by  bills  of  exchange.  Upon 
non-performance  of  this  agreement,  held,  indcb.  assiimp.  did  not 
lie,  at  least  before  the  bills  would  be  due.  The  declaration 
should  be  special.(l) 

15.  In  the  following  case,  it  is  attempted  to  establish  a  dis- 
tinction, which  will  tend  to  reconcile  the  foregoing  contradic- 
tory decisions. 

16.  Agreement  to  pay  for  goods  sold  in  three  months,  by  a 
bill  at  five  months.  The  vendee,  at  the  end  of  the  three  months, 
does  not  give  the  bill,  as  promised,  and  the  vendor  brings  an  ac- 
tion against  him  for  goods  sold  and  delivered.  Held,  the  trans- 
action was  in  effect  a  credit  for  five  months,  and  the  action 
would  not  lie ;  though  a  special  action  on  the  case  might  be 
brought,  for  not  giving  the  bill.  The  terms  of  the  contract  did 
not  create  a  condition,  upon  the  performance  of  which  further 
credit  was  to  be  given  ;  but  the  giving  of  the  bill  was  to  be  for 
the  benefit  of  the  vendor,  that  he  might  have  a  negotiable  in- 
strument, and  the  additional  security  of  a  third  person.  The 
case  is  unlike  that  of  a  sale,  and  taking  a  bill  on  time  in  pay- 
ment, but  without  any  direct  agreement  for  a  credit  in  paying 
for  the  goods.  In  such  case,  upon  dishonor  of  the  bill,  the 
vendor  may  sue  immediately  for  the  price  of  the  goods,  (Ld. 
EUenborough,  Ch.  J.,  dissen.)(2) 

17.  So,  in  the  former  case,  after  the  expiration  of  the  five 
months,  indeh.  assump.  lies. (3) 

18.  Cases  often  occur,  where  the  existence  and  duration  of  a 
credit  are  made  to  depend  upon  the  election  of  one  of  the  par- 
ties to  the  sale. 

19.  Sale  on  a  credit  of  six  or  nine  months.  The  vendee  not 
having  paid  at  the  end  of  six  months,  held,  this  was  an  election 
by  him  to  pay  at  the  end  of  nine,  and  no  present  debt  existed 
till  the  expiration  of  the  latter  period. (4) 

20.  Sale  of  goods  on  the  following  terms — "  7  1-2  per  cent, 
discount,  bill  at  three  months,  10  per  cent,  discount,  cash  in  14 

(1)  Campbell  v.  Sevvell,  1  Chit.  609. 

(2)  Mussen  v.  Price,  4  E.  147. 
(S)  Miller  V.  Shawe,  4  E.  149. 
(4)  Price  v.  Nixon,  2  Rose,  438. 


Chap,    v.]  SALE    ON    CREDIT*  155 

days."  Held,  the  vendor  could  not  maintain  an  action  for  goods 
sold  and  delivered  within  14  days,  even  though  the  sale  was  ef- 
fected by  means  of  a  fraud  on  the  part  of  the  defendant,  which 
would  sustain  an  action  of  trovir.  The  plaintiff  cannot  substi- 
tute a  new  contract  of  sale.  The  legal  construction  of  the 
agreement  was,  that  the  defendant  had  fourteen  days  to  elect, 
whether  he  would  pay  in  cash  at  the  expiration  of  that  period, 
or  by  a  bill ;  and  the  jury  found  that  he  elected  a  credit.  Dur- 
ing the  fourteen  days,  he  was  not  liable  to  pay  on  request.  The 
printed  paper  was  in  the  nature  of  an  offer  by  the  plaintiff, 
either  that  the  defendant  should  pay  in  cash  after  the  fourteen 
days,  or  give  a  bill  at  three  months.  The  only  difficulty  would 
be,  to  determine  what  should  be  the  term  of  credit,  if  neither 
the  cash  were  paid  nor  the  bill  given.  But,  the  action  being 
brought  within  the  fourteen  days,  this  question  became  imma- 
terial. (1) 

21.  Sale  of  goods  on  a  credit  of  three  months  ;  with  an  agree- 
ment, that  if  the  vendee  should  desire  a  longer  time,  the  vendor 
would,  at  the  expiration  of  three  months,  take  a  bill  payable  in 
three  months  more.  Three  months  from  the  sale  having  expir- 
ed, and  the  vendee  not  giving  the  bill,  the  vendor  sues  for  the 
price  of  the  goods.     Held,  the  action  was  well  brought. (2) 

22.  Sale  of  goods  on  a  credit  of  six  months  ;  payment  to  be 
then  made  by  a  bill  at  two  or  three  months  at  the  option  of  the 
vendee.  Held,  this  amounted  to  a  credit  of  nine  months. 
Hence  a  suit,  commenced  within  six  years  from  the  expiration 
of  nine  months,  was  not  barred  by  the  statute  of  limitations. 
But  Parke,  J.,  thought,  that  the  agreement  was  substantially  to 
pay  by  a  bill  after  six  months,  and,  no  bill  being  given,  that  the 
contract  was  broken,  and  the  credit  at  an  end. (3) 

23.  At  an  auction  sale,  a  condition  of  which  was,  that  there 
should  be  a  credit  of  ninety  days  with  good  security,  an  article 
was  struck  off  to  the  defendant,  and  he  removed  it  a  short  dis- 
tance in  the  room,  but  afterwards  refused  to  take  it  or  give  se- 
curity.    Held,  indebitatus  assumpsit  did  not  lie  against  him  till 

(1)  Strutt  V.  Smith,  1  Cromp.  Mees.  &  R.  312. 

(2)  Nickson  v.  Jepson,  2  Stark.  227. 

(3)  Helps  V.  Wiiitcrbotlom,  t  Barn.  &  Ad.  431. 


156  SALE  ON  CREDIT.  [Chap.  V. 

the  expiration  of  ninety  days.  The  removal  was  merely  an  act 
which  might  amount  io  acceptance  at  the  election  of  the  vendor  ; 
it  would  not  justify  the  defendant  in  taking  the  thing  without 
security.  But  even  if  the  vendor  so  elected,  still  the  sale  must 
be  taken  to  have  been  under  the  special  contract,  and  not  to 
justify  an  action  til!  the  credit  expired.(l) 

24.  The  inquiry  often  becomes  important,  whether  a  suit 
against  the  vendee  was  commenced  before  or  after  the  expira- 
tion of  the  credit  agreed  upon. 

25.  In  case  of  a  sale  of  goods  on  credit,  a  suit  being  brought 
for  the  price,  the  special  memorandum  showed,  that  the  bill  was 
filed  after,  though  the  writ  was  issued  before,  the  credit  expired. 
Held,  the  action  was  maintainable.  The  issuing  of  the  writ 
was  merely  the  process  to  bring  in  the  party ;  the  filing  of  the 
bill  was  the  commencement  of  suit.  It  seems,  if  the  defendant 
had  been  arrested  before  the  credit  expired,  he  would  have  had 
a  right  of  action. (2) 

26.  The  plaintiff  brings  an  action  of  debt  for  goods  sold,  al- 
leging that  they  were  to  be  paid  for  on  request.  Plea,  that  the 
defendant  was  never  indebted  as  the  declaration  alleges.  Held, 
(under  the  new  rules  of  pleading)  the  defendant  could  not  prove 
«nder  this  issue  a  credit  unexpired  at  the  commencement  of 
suit.  (3) 

(1)  Parker  v.  Mitchell,  5  N.  H.  165. 

(2)  Svvuncott  V.  Westgarth,4  E.  75. 

(3)  Knapp  v.  Harden,  1  Gale,  4T. 


CHAPTER  VI. 


SALES  AT  AUCTION. 
Section  I. — what  constitutes  an  auction  or  a   sale     at 

AUCTION. 

1.    What  is  an  auction. 

G.    What  is  an  auction  sale. 

7.  Purchase  of  several  articles,  whether  one  contract. 

Section  II. — the  statute    of    frauds,  as    applicable    to 

AUCTIONS. 

Section  III.— rights,    duties  and  liabilities  of    auction- 
eers, particularly  in  relation  to  deposits. 

1 .   Consequences  to  the  auctioneer  of  violating  his  duty. 
4.   Rescinding  oj  sale  by  an  auctioneer. 

6.  Safe  keeping  of  goods. 

7.  Liability  to  true  owner  of  goods  sold. 

8.  Delivery  without  ■payment. 

9.  Rights,  4*c.  in  regard  to  deposites. 

18.  Personally  liable,  where  the  principal  is  unknown. 

19.  Action  against  a  purchaser. 

Section  IV. —  what  avoids  an  auction  sale. 
1.   Misrepresentation. 


158  sALKs  AT  AUCTION.  [Chap.  VI. 

8.  Puffing. 
2G.    Unfair  means  to  reduce  the  price. 


Section  I. — what  constitutes  an  auction. 

1.  This  question  has  often  arisen,  but  seems  to  be  still  some- 
what unsettled.* 

2.  It  seems,  tlie  auction  duty  is  incurred,  though  the  sale  be 
imperfect.(l) 

3.  At  an  auction  sale,  the  vendor  invited  each  bidder  to  put 
two  sums  upon  a  slip  of  paper,  and,  on  comparison,  the  highest 
bidder  to  be  declared  the  purchaser  at  the  lowest  of  his  sums,  if 
exceeding  the  highest  bid  of  any  other  person.  Held,  this  was 
an  auction,  under  St.  19  Geo.  3,  c.  56,  and  the  penalty  incurred 
for  selling  without  license,  though  the  purchase  was  never  cora- 
pleted.(2) 

4.  An  estate  was  set  up  for  sale  at  auction,  and  an  upset 
price  stated.  No  bids  being  made,  the  agent,  acting  as  auc- 
tioneer, gave  notice  to  the  company  present,  that  he  would  sell 
the  estate  privately.  Soon  afterwards  some  of  them  called  him 
into  another  room,  and  made  offers  in  writing,  he  agreeing  that 
the  highest  above  the  upset  price  should  be  the  purchaser,  which 
was  accordingly  done  Held,  this  was  an  auction,  within  the 
meaning  of  the  statute  17  Geo.  3,  c.  50,  19  lb.  c.  56,  and  the 
expression,  "  any  other  mode  of  sale  at  auction,  or  whereby  the 
highest  bidder  is  deemed  the  purchaser;"  meaning  by  the  last 
clause  to  give  a  definition  of  the  word  auction. (S) 

5.  The  agent  of  the  owner  of  an  estate  put  it  up  at  auction, 
first  in  a  number  of  lots  at  certain  prices.  No  bid  being  ob- 
tained, he  offered  it  in  a  smaller  number  of  lots  at  other  prices. 

(1)  Jones  V.  Nanney,  M'Clel.  25.     13  Price,  76. 

(2)  Rex  V.  Taylor,  M'Clel.  362.     13  Price,  636. 

(3)  Walker  v.  Advocale,  &c.  1  Dow,  111. 


*  II  will  be  seen  that  some  of  the  cases  hereafter  cited  relate  to  real  estate.  "  But 
they  are  equally  applicable  lo  sales  of  chattel?. 


Sect,    I.]  WHAT    CONSTITUTES    AN    AUCTION.  159 

Still  obtaining  no  bid,  he  withdrew  the  property.  Held,  this 
was  not  a  bidding  of  the  owner  by  his  agent,  which  subjected 
the  party  to  payment  of  a  duty  for  want  of  notice  to  the  auc- 
tioneer of  the  agency.  The  upsrt  price  was  merely  the  termi- 
nus from  which  a  bidding  commenced.(  I ) 

6.  A  bidder  ai  auction  may  retract  his  bid,  before  the  ham- 
mer is  down.  The  auctioneer  is  the  agent  of  the  vendor  only. 
The  assent  of  both  parties  is  necessary  lo  make  a  binding 
agreement;  but  knocking  down  the  hammer,  alone  expresses 
that  of  the  vendor.  An  auction  lias  been  properly  called  locus 
penitenlicB.  A  bid  is  a  mere  ojfer,  not  binding  on  either  side 
till  assented  to.  If  it  were  otherwise,  one  party  would  be 
bound,  and  not  ihe  other.  Upon  these  grounds,  an  action  does 
not  lie,  against  a  bidder  who  has  refused  to  complete  his  pur- 
chase, but  who  afterwards  buys  at  a  reduced  price,  to  recover 
the  difference.  Where  a  memorandum  in  writing  is  necessary 
to  bind  the  bargain,  it  seems,  the  bidder  may  retract  at  any 
time  before  the  auctioneer  makes  such  memorandum.  But  he 
must  do  it  in  so  loud  a  tone  as  to  be  heard  by  the  auction- 
eer.(2) 

7.  Where  the  same  person  buys  at  an  auction  several  lots, 
for  different  sums  ;  the  contracts  are  separate  in  law  and  fact  ; 
and,  in  a  special  action  on  the  case  for  refusing  to  adhere  to  the 
conditions,  cannot  be  consolidated  into  one. (3) 

8.  Goods  sold  at  auction  were  knocked  down  in  several  lots 
to  one  bidder,  and  his  name  written  against  them  on  the  catia- 
locrue.  Held,  this  was  a  distinct  contract  for  each,  and  hence 
a  subsequent  memorandum  of  an  agreement  to  purchase  them 
required  no  stamp,  the  value  of  each  lot  being  under  <£20,  though* 
the  whole  together  exceeded  this  amount. (4) 

(1)  Cruso  V.  Crisp,  3  E.  337. 

(2)  Payne  V.  Cave,  3  T.  R.  148  4  Bing.  653.  3  T.  R.  653.  Jones  v.  Nanney, 
M'Clel.  25. 

(3)  James  v.  Shore,  1  Stark.  426.    2  Taun.  38. 

(4)  Roots  V.  Dormer,  4  Barn.  &  Ad.  77.     1  Nev.  &  M.  667. 


160  SALES  AT  AUCTION.  [Chap.  VI. 


Section  II. — the    statute    of    frauds,  as    applicable    to 

AUCTIONS. 

1.  Tlie  question  has  been  often  raised,  whether  auction  sales 
are  within  the  Statute  of  Frauds,  requiring  a  memorandum  in 
writing  to  bind  the  bargain;  and,  if  so,  what  is  a  sufficient 
compliance  with  the  requisitions  of  the  Statute.  Upon  these 
points,  very  eminent  judges  have  expressed  contradictory  opin- 
ions. 

2.  It  was  remarked  by  Ld.  Mansfield,  that  the  solemnity  of 
an  auction  sale  precludes  all  perjury  as  to  the  fact  of  the  sale ; 
and  he  expressed  it  as  the  inclination  of  his  present  opinion, 
that  auctions  in  general  are  not  within  the  statute.  Wilmot,  J. 
was  inclined  to  think,  that  sales  by  auction,  openly  transacted 
before  five  hundred  people,  were  not  within  the  statute.  But  in 
a  subsequent  case,  Ld.  Ellenborough  remarked,  that  with  all 
due  deference  it  was  no  sufficient  reason  to  dispense  with  the 
statute,  merely  because  the  quantum  of  parol  evidence  dimin- 
ishes the  danger  of  perjury.  The  same  argument  would  apply 
to  all  sales  in  market  overt.  If  we  get  loose  from  the  words  of 
the  statute,  the  question  turns  upon  the  quantum  and  degree  of 
danger  of  perjury,  the  time  of  sale,  and  the  number  of  persons 
present.  This  construction  would  render  the  statute  more 
mischievous  than  beneficial  to  the  trading  world.  He  conclud- 
ed by  saying,  that  he  was  not  prepared  to  say  that  sales  by  auc- 
tion were  not  within  the  statute,  or  to  give  a  conclusive  opinion 
to  the  contrary. (1)* 

3.  Upon  the  point,  whether  an  auctioneer  is  to  be  considered 
the  agent  of  both  seller  and  purchaser,  so  as  to  make  his  mem- 
orandum a  sufficient  signing  under  the  statute;  it  is  said  to 
have  been  uniformly  so  held  since  the  case  of  Simon  v.  3Iotivos. 
It  would  be  dangerous  to  break  in  upon  a  rule  affecting  a 
broker's  sales,  where  a  memorandum   in   his  book,  and  bought 

(1)  Simon  V.  Motiros,  1  Bl.  R.  699.     Hindc  v.  VVhitehouse,  7  E.  568. 


*  It  is  held  in  Massachusetts  that  auctions  are  within  the  Statute.     D&vis  v.  Row- 
ell,  2  Pick.  64.    See  Statute  of  Frauds. 


Sect.  II.]       THE  STATUTE  OF  FRAUDS,  &,C.  161 

and  sold  notes  transcribed  therefrom  and  delivered  respectively 
to  the  buyers  and  sellers,  have  been  held  a  sufficient  compliance 
with  the  statute.  All  great  transactions  of  the  city  (of  London) 
are  thus  conducted  ;  and  it  is  too  late  to  question  the  prac- 
tice.(l) 

4.  Certain  sugars,  deposited  in  the  king's  warehouse,  under 
locks  of  the  king  and  the  owner,  and  not  removable  till  pay- 
ment of  the  duties,  were  advertised  to  be  sold  at  auction,  Sept. 
20.  Samples  of  half  a  pound  from  each  hogshead,  drawn  out 
after  weighing  at  the  king's  beam,  and  fixing  the  duties  accord- 
ingly, were  shown  to  the  bidders.  The  auctioneer  had  before 
him  a  printed  catalogue,  containing  the  lots,  marks  and  num- 
ber of  hogsheads,  and  the  gross  weight.  Written  conditions 
of  sale  were  also  read,  as  applying  to  the  sugars  in  the  cata- 
logue, but  the  two  papers  were  not  annexed,  and  did  not  refer 
to  each  other.  The  auctioneer  wrote  on  the  catalogue  the 
name  of  the  purchaser,  and  the  bid  for  each  lot,  first  remarking 
thai  the  duties  were  unpaid,  and  to  be  paid  the  next  day  by  the 
vendor.  The  biddings  having  closed,  samples  were  delivered 
to,  and  accepted  by  the  purchaser,  according  to  usage,  as  a  part 
of  his  purchase,  and  to  make  up  the  quantity  marked  as  weigh- 
ed. Sept.  22,  before  the  duties  could  be  paid,  without  default 
of  the  vendor,  the  sugars  were  burnt.  Held,  by  the  principles 
of  the  common  law,  the  auction  sale  passed  the  property,  such 
being  the  intention  of  the  parties,  though  it  was  known  that 
payment  of  the  duties  was  a  necessary  preliminary  to  delivery, 
and  the  vendee  must  bear  the  loss  ;  that  if  the  Statute  of  Frauds 
was  applicable  to  auction  sales,  then  delivery  and  acceptance  of 
the  sample  were  sufficient  to  pass  the  property  ;  and  (it  seems) 
that  the  auctioneer  was  the  agent  of  both  parties,  and  his  signa- 
ture therefore  equivalent  to  theirs. (2) 

5.  A  brig  was  sold  by  auction  at  the  Merchants'  Exchange 
in  New  York.  Immediately  after  the  sale,  the  auctioneer  went 
to  his  counting-room  in  a  different  building  in  the  same  street, 

and  made  the  entries  in  his  sale-book.     Held,  insufficient  to 


(1)  Hinde  v.  Whitehousf,  7  E,  569. 

(2)  Hindu  v.  Whitehousc,  7  E.  558. 

21 


162  SALES  AT  AUCTION.  [Chap.  VI, 

bind  the  bargain.  A  memorandum  must  be  made  in  the  sale- 
book  at  the  time  and  place  of  sale.  It  is  not  enough  to  minute 
in  pencil-marks  at  the  place  of  sale  the  sums  and  the  name  of 
the  vendee,  though  followed  immediately  by  a  formal  and  legal 
entry  at  another  place.  And  it  seems,  in  New  York,  the  entries 
should  be  made  in  a  sale-book,  used  exclusively  for  that  pur- 
pose.(l) 

6.  In  New  York,  it  is  provided  by  Statute,  that  in  case  of 
auction  sales,  the  auctioneer  shall  enter  the  name  of  the  person 
on  whose  account  the  sale  is  made.  Under  this  provision,  it  is 
sufficient  to  enter  the  name  of  an  agent,  consignee,  or  any  per- 
son having  authority  to  sell  the  goods.  And  the  true  owner 
may  maintain  an  action  upon  the  contract,  though  not  named 
in  the  entry. (2) 


Section  III. — rights,   duties    and  liabilities  op  auction- 
eers,   PARTICULARLY    IN    RELATION   TO    DEPOSITS. 

1.  If  an  auctioneer  deviate  from  the  strict  terms  of  the  con- 
ditions, he  must  personally  suffer  the  consequences  ;  being  lia- 
ble for  the  duties,  and  not  entitled  to  maintain  any  action 
against  the  vendee.  In  case  the  auctioneer  has  fulfilled  his  du- 
ty, he  may  maintain  an  implied  assumpsit  against  the  vendor; 
and  the  latter  has  a  claim  against  the  purchaser,  upon  the  ex- 
press agreement  arising  from  the  conditions  of  sale. (3) 

2.  The  plaintiff,  an  auctioneer,  brings  special  assumpsit 
against  the  highest  bidder  at  a  sale  of  land,  to  recover  money 
paid  by  him  to  the  excise  collector  for  the  auction  duty.  The 
conditions  of  sale  provided  that  the  purchaser  should  pay  the 
duty;  but,  in  consequence  of  the  plaintiff 's  having  neglected  to 
set  down  the  name  of  the  defendant,  the  sale  was  not  legally 
binding.     Held,  neither  special  assumpsit,  nor  an  action   for 


(1)  Hieks  V.  Whitmore,  12  Wend.  548. 

(2)  lb. 

(3)  Jones  v.  Nanney,  13  Price,  76. 


Sect.    III.]    EIGHTS,    DUTIES,    &.C.    OF    AUCTIONEERS.  163 

money  paid,  would  lie.     And,  it  seems,  the  plaintiff  could  not 
recover  the  duty  from  the  vendor. (1) 

3.  Where  an  auctioneer  forfeits  his  bond  to  the  Crown,  by 
neglecting  to  pay  the  duties  at  the  time  stipulated,  the  penalty 
becomes  absolutely  due,  and  is  not  a  mere  security  to  compel 
an  account,  to  be  satisfied  by  payment  at  a  subsequent  period. 
Auctions  are  considered  by  the  law  as  cash  transactions.  And 
as  the  receipts  from  this  source  are  applied  to  the  dues  of  the 
army  and  navy,  which  must  be  punctually  met,  mere  interest 
can  be  no  adequate  compensation  for  delay. (2) 

4.  An  auctioneer  has  no  right  to  rescind  a  sale  without  au- 
thority from  the  vendor. 

5.  An  auctioneer,  having  sold  a  horse,  upon  the  complaint 
of  the  vendee  that  he  did  not  correspond  with  the  advertisement, 
and  would  not  draw,  rescinded  the  sale.  In  an  action  brought 
by  the  owner  of  the  horse  against  the  auctioneer  upon  this 
ground,  held,  the  plaintiff  was  not  bound  to  show  any  express 
agreement  by  the  defendant  not  to  rescind ;  but  the  burden  was 
on  the  defendant,  to  offer  some  excuse  for  doing  it. (3) 

6.  An  auctioneer  is  liable  for  the  want  of  such  care  of  goods 
entrusted  to  him  for  sale,  as  he  takes  of  his  own  property  ;  not 
for  unavoidable  accidents. (4) 

7.  Where  an  auctioneer  is  notified  that  his  principal  does  not 
own  the  property  sold,  he  is  personally  liable,  in  an  action  for 
money  had  and  received,  to  the  true  owner,  for  the  proceeds  of 
sale.  Under  these  circumstances  he  becomes  himself  a  quasi 
principal. (5) 

8.  Where  an  auctioneer  delivers  goods  sold  by  him,  without 
receiving  payment  in  full,  he  is  liable  to  the  vendor  for  not  giv- 
ing an  accurate  account  of  the  proceeds. (6) 

9.  Questions  often  arise,  respecting  the  duty  and  liability  of 
an  auctioneer,  in  relation  to  a  deposit  made  by  the  purchaser, 
conformably  to  the  conditions  of  sale. 

(1)  Jones  V.  Nanney,  13  Price,  76. 

(2)  Rex  V.  Christie,  2  Anst.  5S6. 
(S)  Nelson  V.  Aldridge,  2  Stark.  435. 

(4)  Maltby  v.  Christie,  1  Esp.  340. 

(5)  Hardacre  v.  Stewart,  5  Esp.  103 
<6)  Brown  v.  Stadton,  2  Chit.  353. 


164  SALES   AT   AUCTION.  [Chap.  VI. 

10.  Where  a  purchaser  of  property  at  an  auction  sale  re- 
scinds the  bargain  in  consequence  of  an  objection  to  the  title, 
and  the  concealment  of  material  facts,  he  may  recover  a  deposit 
from  the  auctioneer,  no  proof  being  offered  that  it  has  been 
paid  over  to  the  vendor.  And  the  auctioneer  would  have  no 
right  thus  to  pay  it  over,  till  completion  of  the  sale.(l) 

11.  An  auctioneer  received  a  deposit  from  the  vendee,  in 
presence  of  the  vendor,  signed  an  agreement  acknowledging 
the  sale,  and  engaged  to  complete  it ;  but,  by  reason  of  a  defect 
in  the  title,  the  sale  was  not  completed.  Held,  the  vendee 
might  recover  the  deposit  from  the  auctioneer,  though  paid  over 
to  the  vendor  before  discovery  of  the  defective  title,  and  though 
the  vendee  had  given  him  no  notice  against  paying  it  over. (2) 

12.  It  is  said  that,  where  an  auctioneer  receives  a  deposit,  it 
seems,  he  is  a  stakeholder,  and  not  the  agent  for  both  parties. 
He  is  liable  at  all  events,  till  the  contract  is  completed.  And 
his  knowledge  of  the  defective  title  is  equivalent  to  an  express 
notice  not  to  pay  over.  The  deposit  is  a  conditional  payment, 
and  should  not  be  parted  with  till  the  conditions  are  fulfilled. 
In  this  case,  the  auctioneer,  upon  a  demand  from  the  vendee, 
neglected  to  inform  him  that  he  had  paid  over  the  money  to  the 
vendor,  and  thus  led  the  plaintiff  to  bring  the  present  suit.(3) 

13.  The  title  of  an  estate  sold  at  auction  being  objected  to, 
the  auctioneer  refused  to  return  the  deposit,  and  was  compelled 
to  pay  the  costs  of  a  suit  brought  against  him.  Held,  he  could 
not  recover  the  amount  from  the  vendor,  in  an  action  for  money 
paid,  but  must  declare  specially. (4) 

14.  Where  a  suit  is  brought  against  an  auctioneer  for  a  de- 
posit paid  him,  he  cannot  file  a  bill  of  interpleader,  if  he  in- 
sists upon  retaining  a  commission  or  duty. (5) 

15.  Sale  of  houses  at  auction,  according  to  certain  particu- 
lars and  conditions,  one  of  which  was,  that  an  abstract  of  title 
be  delivered  within  ten  days,  and  another,  that  a  deposit  be  paid 

(1)  Burrough  v.  Skinner,  5  Burr.  2639. 

(2)  Gray  v.  Gutteridge,  3  C.  &  P.  40. 

(3)  Edwards  v.  Hodding,  1  Marsh,  377.    5  Burr.  2639. 

(4)  Spurrier  v.  Elderton,  5  Esp.  1. 

(6)  Mitchell  v.  Hayne,  2  Sim.  &  St.  63. 


Sect.    III.]    RIGHTS,    DUTIES,    &C.    OF    AUCTIONEERS.  165 

the  auctioneer.  A  purchaser  of  two  houses  paid  the  deposits, 
signed  an  agreement  as  purchaser,  and  took  a  receipt  from  the 
auctioneer,  as  for  payment  of  a  deposit  upon  the  auction  sale  of 
the  premises  named  in  the  particulars,  &c.  The  abstract  not 
being  delivered,  the  vendee  brings  an  action  against  the  auc- 
tioneer for  his  deposit,  and  offers  in  evidence  the  receipt  and 
conditions  of  sale,  but  not  the  agreement  signed  by  himself. 
Held,  the  evidence  was  insufficient  to  maintain  the  action. (1) 

IG.  A  vendee  at  auction  paid  to  the  auctioneer  a  deposit  as 
part  of  the  price,  until  the  title  should  be  made  out.  Held,  the 
auctioneer  was  not  liable  for  interest  upon  the  amount,  though 
four  years  had  elapsed  since  the  sale,  no  demand  of  payment 
having  been  made  upon  him. (2) 

17.  An  auctioneer,  as  agent  for  the  vendor,  agreed  to  sell 
upon  the  terms  of  printed  conditions,  according  to  which  the 
vendee  was  to  pay  down  a  deposit,  and  the  duty,  and  the  re- 
mainder of  the  price  at  a  certain  day,  upon  receiving  a  good 
title,  and  the  vendor  was  to  prepare  and  deliver  to  the  vendee 
an  abstract  of  title.  There  being  a  defect  in  the  title  and  a 
consequent  failure  of  the  contract,  held,  the  auctioneer  was  not 
liable  to  pay  interest  upon  the  deposit  and  duty,  unless  the  mo- 
ney had  been  demanded,  or  notice  given  him  that  the  bargain 
was  rescinded.  It  was  no  part  of  his  duty  to  tender  the  money, 
which  he  received  as  a  stakeholder,  and  was  therefore  not  bound 
to  return,  till  notified  that  the  contract  was  at  an  end,  and  that 
his  character  as  stakeholder  had  ceased.  It  would  be  other- 
wise, if  the  auctioneer  had  not  stated  that  he  was  agent  for  the 
vendor.(3) 

18.  Where  an  auctioneer  does  not  disclose  the  name  of  his 
employer,  he  is  personally  liable  to  a  vendee  for  not  fulfilling  the 
contract  of  sale. (4) 

19.  An  auctioneer  may  maintain  an  action  for  goods  sold  and 
delivered  against  a  vendee,  though  the  sale  took  place  at  the 
house  of  the  vendor,  who  was  also  known  to  be  the  owner.     An 

(1)  Curiis  V.  GrealcJ,  3  Nev.  &  M.  449.     1  Ad.  &  El.  167. 

(2)  Lee  v.  Munn,  1  Moore,  481. 

(3)  Gaby  v.  Driver,  2  Younge  &  Jer.  543. 

(4)  Hanson  v.  Roberdeau,  Peake,  120. 


16G  SALES  AT  AUCTION.  [Chap.  VI. 

auctioneer  has  the  possession,  coupled  with  an  interest,  not  a 
bare  custody,  like  a  servant  or  shopman.  He  has  a  special  pro- 
perty in  the  goods — a  lien  for  charges,  commissions  and  duties. 
If  he  gives  credit,  it  is  at  his  own  risk  ;  and  in  this  he  differs 
from  a  factor,  who  does  not  incur  such  liability,  unless  of  the 
(Id  credere  class.  So  if  the  goods  should  be  stolen,  the  auction- 
eer might  maintain  trespass  or  an  indictment.  In  this  case,  the 
vendor,  though  owning  the  premises  where  the  sale  took  place, 
gave  actual  possession  of  them  to  the  auctioneer  for  this  pur- 
pose, and  not  a  mere  authority.  Mr.  Justice  Wilson  doubted, 
how  far  a  notice  from  the  vendor  to  the  purchaser  not  to  pay 
the  auctioneer  would  be  a  bar  to  any  suit  by  the  latter.  But, 
after  taking  and  enjoying  the  goods,  the  defendant  is  estopped 
to  deny  that  the  auctioneer  had  a  right  to  sell.(l) 

20.  An  auctioneer  may  recover  the  price  of  goods  sold,  after 
accounting  for  it  to  his  employer,  though  the  vendee  has  a  de- 
mand against  the  latter,  a  receipt  for  which  he  has  handed  to  the 
auctioneer  for  the  purpose  of  payment. 

21.  The  purchaser  of  goods  at  auction  handed  to  the  auction- 
eer a  receipt  from  himself  (the  purchaser)  to  the  owner  of  the 
goods,  for  a  debt  due  from  the  latter.  The  auctioneer  doubted 
whether  to  accept  it,  and  in  the  mean  time  the  purchaser  drove 
off.  The  vendor  declining  to  take  the  receipt  in  payment,  the 
auctioneer  paid  him  in  money,  and  brings  an  action  for  goods 
sold  and  delivered  and  money  paid,  against  the  purchaser.  Held, 
the  action  was  maintainable. (2) 

22.  But  where  the  vendee  has  a  claim  against  the  nominal 
vendor,  and  makes  a  settlement  with  him  without  having  been 
forbidden  so  to  do  by  the  auctioneer,  the  latter  cannot  sue  for 
the  price,  although  in  fact  the  nominal  vendor  was  only  a  part- 
owner. 

23.  Goods  belonging  in  part  to  A  and  in  part  to  B,  were  put 
up  at  auction  at  the  house  of  A.  They  were  also  entered  at  the 
excise  in  A's  name,  and  the  catalogue  spoke  of  them  as  all  be- 
longing to  him.     C,  who  held  an   acceptance  of  A,  purchased 

(1)  \Vill)ani5  V.  .MiUinglon,  1  H.  Bl.  81 

(2)  lb. 


Sect,  III.]    RIGHTS,    DUTIEi?,    &C.    OF    AUCTIONEERS.  1G7 

some  of  the  goods,  without  notice  that  they  belonged  in  part  to 
B,  and  afterwards  made  a  settlement  with  A,  The  auctioneer 
allowed  C  to  take  the  property,  gave  him  no  injunction  against 
makincr  payment  to  A,  and  afterwards  brings  a  suit  for  the  price 
against  C.  Held,  he  could  not  recover  either  for  the  goods 
which  belonged  to  A,  or  those  which  belonged  to  B.  Also,  that 
in  case  there  had  been  no  settlement  between  A  and  C,  the  lat- 
ter might  set  off  in  this  action  his  demand  against  the  for- 
mer.(l) 

24.  Where  goods  are  sold  at  auction  upon  credit,  and  the 
purchaser  refuses  to  take  them,  the  owner  may  maintain  an  ac- 
tion against  him  in  his  own  name,  before  the  term  of  credit  has 
expired,  for  breach  of  contract ;  and  the  measure  of  damages  will 
be  the  difference  between  the  price  agreed  on,  and  the  value  of 
the  property  at  the  time  of  the  defendant's  refusal  to  take  it. 
The  amount  of  such  difference  may  be  determined  by  a  rc-sale 
at  the  vendee's  risk.  But  the  jury  will  not  be  bound  by  the  re- 
sult of  a  re-sale,  if  any  other  more  satisfactory  measure  can  be 
resorted  to.  (2) 


Section  IV. — wuat  avoids  an  auction  sale. 

1,  One  of  the  most  common  grounds  for  avoiding  a  sale  at 
auction,  is  that  of  some  misrepresentation,  made  by  the  vendor 
or  his  agent,  with  regard  to  the  property  sold.  Most  of  the 
cases  on  this  subject  relate  to  sales  of  real  property ;  but,  the 
principles  involved  in  them  not  depending  at  all  upon  this  cir- 
cumstance, they  may  properly  be  cited  as  equally  applicable  to 
sales  of  chattels. 

2.  An  auction  sale  was  made  upon  the  condition,  that  any 
mistake  in  the  description  or  particulars  of  the  property  should 
not  annul   the  sale,  but  be  matter  of  compensation.     The  pro- 


(1)  Coppin  V.  Walker,  2  Marsh.  497., 

(2)  Girard  v,  Taggart,  5  S.  &  R.  19.  539. 


168  SALES  AT  AUCTION.  [Chap.  VI. 

posals  further  set  forth,  that  "  plot  marked  A  cannot  be  identified 
by  the  vendor,  because  a  certain  person  is  dead,  but  ^itjs  pre- 
sumed the  vendee  will  be  able  to  find  it."  They  al.-^o  spoke  of 
"  a  substantial  brick  building"  on  the  premises,  and  represented 
the  property  as  estimated  to  rent  at  <£35.  It  was  proved  that 
the  above  plot  could  not  be  found,  that  there  was  no  substantial 
brick  building,  and  that  the  property  would  not  rent  for  one 
half  of<£35.  Held,  as  a  substantial  part  of  the  property  did  not 
exist  or  could  not  be  found,  and  as  the  representations  in  regard 
to  it  were  malajidc  and  greatly  exaggerated  ;  the  clause  provid- 
ing for  compensation  did  not  apply,  but  the  sale  was  void,  and 
the  vendee  might  maintain  an  action  to  recover  his  deposit.(l) 

3.  The  particulars  of  an  auction  sale  stated  the  property  as 
held  under  the  C  estate  upon  three  lives,  and  one  of  the  condi- 
tions was,  that  a  misdescription  or  misstatement  should  not  viti- 
ate the  sale,  but  merely  be  a  ground  for  compensation.  In  an 
action  to  recover  a  deposit,  it  appeared  that  one  life  had  drop- 
ped before  the  sale,  and  that  the  property  was  not  held  directly 
under  the  C  estate.  Held,  the  defendant  could  not  prove,  in 
bar  of  the  action,  a  declaration  made  by  the  auctioneer,  before 
the  sale,  that  this  life  had  dropped  ;  but  he  might  prove,  that 
the  plaintiff  before  the  sale  had  read  the  original  lease.  (2) 

4.  Auction  sale  of  a  public  house.  The  particulars  described 
the  premises,  as  held  for  an  unexpired  term  at  .£55  rent,  and, 
among  other  things,  embracing  a  yard.  By  the  conditions,  the 
contract  was  to  be  completed  on  June  25th,  and  any  error  of 
description  was  to  be  a  matter  of  compensation,  to  be  settled  by 
the  award  of  arbitrators.  In  point  of  fact,  the  yard  was  not 
held  under  a  lease,  but  by  tenancy  from  year  to  year,  at  a  farther 
rent  of  .£10.  The  vendor  obtained  a  lease  of  the  yard  for  the 
same  term  with  the  other  premises,  at  the  farther  rent  of  £8, 
dated  June  23,  but  executed  long  after  June  25.  The  yard  was 
proved  necessary  to  the  enjoyment  of  the  premises.  Held,  the 
provision  for  a  compensation  was  inapplicable  to  the  above  vari- 
ation from   the  contract,  and   that  it  authorized   the  vendee  to 


(1)  Robinson  v.  Musgrove,  2  Moo.  &  R.92.     Dykes  v.  Blake,  6  Scott,  320,  ace. 

(2)  Bradshaw  v.  Beiinell,  5  C.  &  P.  48. 


Sect,    IV.]  WHAT    AVOIDS    AN    AUCTION    SAL<?.  169 

rescind  the  sale,  although  there  was  no  proof  that  the  defect  was 
known  to  the  vendor.(l) 

5.  In  an  action  against  an  auction  purchaser  for  not  complet- 
ing the  sale,  the  printed  conditions  of  sale  cannot  be  contradict- 
ed by  the  verbal  declarations  of  the  auctioneer  at  the  time,  in 
order  to  disprove  the  charge  of  misrepresentation. 

6.  Thus,  where  the  conditions  were,  that  the  property  was 
"  free  from  all  incumbrances,"  when  in  fact  there  was  a  charge 
upon  it  of  <£I7  per  annum,  which  the  auctioneer  declared,  but 
not  to  the  vendee  individually;  held  no  action  would  lie  against 
the  latter  for  not  completing  his  purchase. (2) 

7.  The  plaintiff  brings  an  action  for  the  price  of  certain 
growing  crops  sold  to  the  defendant.  The  plaintiff  purchased 
these  crops  at  auction.  The  auctioneer  sold,  according  to  a 
printed  paper,  lot  No.  6,  being  "  ten  acres  of  spring  wheat,"  «Stc. 
Also  lot  No.  15,  "  the  keep  of  George's  field  until  old  Michael- 
mas day  next."  There  was  a  memorandum  at  the  bottom  of 
the  paper,  as  follows — •"  the  keep  of  all  the  fields,  &c.  will  be 
sold  with  the  crops,  except  George's  field."  The  auctioneer 
made  a  verbal  declaration,  with  respect  to  lot  No.  6,  that  it  was 
not  spring  wheat,  and  the  keep  was  not  to  be  sold.  The  lot  was 
knocked  down  to  the  plaintiff,  and  his  name  written  as  the 
purchaser.  The  plaintiff  then  retired  from  the  room  with  the 
defendant,  and  on  his  return  gave  notice  that  the  defendant  had 
purchased  the  lot,  and  the  defendant,  in  presence  of  the  plain- 
tiff, requested  to  have  his  name  substituted  for  the  plaintiff's 
which  was  accordingly  done.  In  an  action  against  the  defend- 
ant for  not  completing  his  bargain  with  the  plaintiff,  held,  the 
written  memorandum  could  not  be  controlled  by  the  verbal  dec- 
larations of  the  auctioneer,  and,  as  the  former  was  not  fulfilled, 
the  action  could  not  be  sustained. (3) 

8.  The  most  common  ground  of  objection  to  auction  sales,  is 
the  circumstance  of  the  vendor's  secretly  employing  some  one 

(1)  Dobell  V.  Hutchinson,  3  Nov.  &;  M.  251.    3  Ad.  Si  El.  356. 

(2)  Gunnis  v.  Erhart,  1  H.  Bl.  289.  (Soo  Powul!  v.  E  iuiauds,  12  E.  6.  Slark  v. 
Highgate,  &,c.  5  Taun.  792.) 

(3)  Shelion  v.  Levius,  2  Cionip.  &  J.  411. 

22 


170  SALES  AT  AUCTION.  [Chap.  VI. 

to  bid  on    his  own  account,  for    the  purpose  of  enhancing  the 
price  of  the  property.     This  is  commonly  called  puffing. 

9.  The  prevailing  doctrine  on  this  subject  is,  that  a  sale  at 
auction  is  avoided  by  the  owner's  employing  a  bidder.  The 
leading  case  in  which  this  principle  is  established  is. the  follow- 
ing, decided  by  Lord  Mansfield. (1) 

10.  The  owner  of  a  horse,  sold  at  auction,  directed  the  auc- 
tioneer not  to  sell  it  under  a  certain  sum.  Held,  no  action 
could  be  maintained  against  the  auctioneer  for  violating  this  di- 
rection, because  it  would  be  illegal  to  obey  it.  It  would  be  oth- 
erwise, if  the  direction  were  not  to  put  up  the  horse  under  a 
certain  sum.  In  this  leading  and  often  controverted  case,  Ld. 
Mansfield  remarked,  upon  the  practice  of  employing  bidders  for 
the  owner,  that  the  frequency  of  such  practice  was  no  argument 
in  its  favor,  for  the  same  might  be  said  of  gaming,  stock-jobbing 
and  swindling.  The  auctioneer  may  bid  for  a  third  person,  but 
not  for  the  owner. (2) 

11.  In  another  case,  the  same  principle  is  thus  stated.  Where 
all  the  bidders  at  an  auction,  except  the  purchaser,  bid  for  the 
vendor  without  notice,  and  the  vendee  is  thereby  induced  to 
give  for  the  property  more  than  its  value  ;  the  sale  is  void  in  law 
and  Equity. (3) 

12.  In  another  case,  the  same  rule  is  stated  with  slight  qual- 
ification. 

13.  Where  the  owner  of  property,  sold  at  auction,  employs 
only  a  single  person  (it  seems)  to  bid  for  him,  up  to  a  certain 
specified  sum;  this  avoids  the  sale,  unless  it  was  publicly  an- 
nounced at  the  time.  If  two  persons  are  employed,  the  sale  is 
certainly  void. (4) 

14.  Upon  this  subject,  Ld.  Kenyon  uses  very  strong  language. 
He  says  "  the  whole  transaction  is  bottomed  in  fraud — it  is  fraud 
from  beginning  to  end."  "  The  whole  of  Ld.  Mansfield's  rea- 
soning (in  Bexwell  v.  Christie,  Cowp.  395,)  is  founded  on   the 

(1)  Crowder  V.  Au.sUn,  3  Bing.  368.     6  T.  R.  642 

(2)  Bexwell  v.  Christie,  Cowp.  396. 

(3)  Bramley  v.  Alt,  3  Ves.  Jun.  624. 

(4)  Wheeler  v.  Collier,  M   &  M.  125  j 


Sect.    IV.]  WHAT    AVOIDS    AN    AUCTION    SALE.  171 

noblest  principles  of  morality  and  justice,  and  calculated  to  pre- 
serve honesty  between  man  and  man."  He  further  remarks, 
that  if  this  had  been  the  first  case,  perhaps  he  should  have  hesi- 
tated ;  but  "  Ld.  Mansfield's  comprehensive  mind  saw  it  in  its 
true  colors,"  &c.(l) 

15.  The  plaintiff  and  B  were  appointed  by  the  will  of  C,  trus- 
tees to  make  sale  of  his  lands.  They  were  accordingly  sold  at 
auction  after  public  notice.  D,  the  counsel  of  the  plaintiflT,  bid 
<£1750,  and  the  defendant  <£1751.  D  was  a  by-bidder,  who 
declared  that  he  did  not  want  the  land,  and  advised  the  defend- 
ant to  purchase  it.  Held,  if  D  was  employed  by  the  trustees  as 
a  by-bidder,  and  the  defendant  was  ignorant  of  it  before  mak- 
ing the  purchase,  and  if  D  bid  in  order  to  enhance  the  price  for 
the  benefit  of  the  trustees,  the  sale  was  void. (2) 

16.  At  an  execution  sale,  the  debtor  employed  two  persons  to 
bid  up  to  close  82000.  The  defendant  became  the  purchaser,  but 
refused  to  take  the  property,  and  it  was  sold  again  at  his  risk 
and  at  a  loss  of  about  $400.  In  an  action  against  the  defend- 
ant to  recover  the  amount  of  this  loss,  held,  the  sale  was  void. 
(But  the  jury  found  for  the  plaintiff  840.)  (3) 

17.  Property  was  seized  under  an  extent  by  an  agent  of  the 
crown,  to  whom  a  bid  was  reserved  by  the  conditions  of  sale. 
A  puffer  was  employed  at  the  sale.  On  application  by  the  Crown 
to  enforce  the  contract,  it  was  contended  that  the  vendee  could 
not  object  to  the  sale  on  this  ground,  because  he  did  not  come 
into  Court  with  clean  hands,  it  being  proved  that  he  had  collud- 
ed with  the  tenant  who  claimed  the  property,  and  had  bid,  not 
for  the  purpose  of  purchasing,  but  in  order  to  obtain  an  abstract 
of  title.  Held,  the  employment  of  a  puffer  still  avoided  the 
sale.  The  plaintiff  did  not  want  the  aid  of  Equity,  but  only 
that  the  rules  of  law  should  be  applied  to  his  case.  The  mis- 
conduct of  the  vendee  did  not  preclude  him  from  availjng  him- 
self of  the  provisions  of  the  law  against  puffing.(4) 


(1)  Howard  v.  Castle,  6  T.  R.  642. 

(2)  Moncrieff  V.  GoWsboroiigh,  4  Har.  &  M'Hnti.  281. 

(3)  Donaldson  v.  Mc'Roy,  1  Browne,  346. 

(4)  Rex  V.  Marsh,  3  Younge  &  J.  331. 


172  SALES    AT    AUCTION.  [Chop.    VI. 

18.  There  are  other  cases,  however,  which  do  not  recognize 
the  rule  above  stated  in  its  full  extent. 

19.  In  the  case  of  Twining  v.  Morrice,  Kenyon,  M.  R.  saya, 
"  I  do  not  say  the  doctrine  in  Bexwdl  v.  Christie  is  wrong  ;  but 
every  body  knows  that  such  persons  are  constantly  employ- 
ed."(l) 

20.  A  bill  in  Chancery  alleged,  that  persons  were  employed 
to,  and  did  bid  for  the  owner,  in  order  fraudulently  to  advance 
the  price  above  the  real  value  of  the  property ;  but  did  not  al- 
lege that  there  was  no  real  bidder.  The  Ld.  Chancellor  re- 
marked, that  Bexwell  v.  Christie  turned  upon  the  fact  that  there 
was  no  real  bidder,  and  that  the  purchaser  refused  instantly  to 
complete  the  contract.  It  was  a  trap-auction.  "  The  reason- 
ing goes  large  and  does  not  convince  one.  It  would  reduce 
every  thing  to  a  Dutch  auction,  a  bidding  downwards.  I  feel 
vast  difficulty  to  compass  the  reasoning,  that  one  man  does  not 
follow  his  own  judgment,  because  others  bid,"  &c.  The  acts 
of  parliament,  which  make  certain  exceptions  from  the  auction 
tax,  suppose  that  the  owner  may  himself  bid.  They  require  on- 
ly a  private  notice  to  the  auctioneer.  The  Ld.  Chancellor  goes 
on  to  speak  of  the  doctrines  of  the  civil  law  and  the  schools  of 
philosophy  upon  this  subject.  He  farther  remarks,  that  it  is 
always  taken  for  granted,  unless  the  contrary  appears,  that  there 
is  some  person  to  bid  for  the  vendor.  And  this  practice  is  ben- 
eficial to  the  public.  If  it  did  not  prevail,  many  articles  would 
be  sold,  such  as  scarce  and  valuable  books,  which  three  or  four 
persons  only  would  divide  among  them,  and  obtain  for  much  less 
than  their  real  value. (2) 

21.  At  an  auction  sale,  a  person  bid  privately  for  the  vendor, 
to  prevent  a  sacrifice.  The  vendor  was  assignee  of  a  bankrupt. 
The  vendee  was  not  present,  but  a  third  person  acted  for  him 
without  previous  authority,  and  the  vendee  afterwards  ratified 
the  purchase.  The  bid  for  the  vendor  immediately  preceded 
that  for  the  vendee.  The  former  bidder  was  enjoined  against 
exceeding  the  sum  named,  upon  the  ground  that  if  he  went  be- 

(1)  2Bro.  S31. 

(2)  Conolly  v.  Parsons,  3  Ves.  jun.  625  n. 


Sect.    IV.]  WHAT    AVOIDS    AN    AUCTION    8ALE.  173 

yond  this  amount,  he  would  be  required  to  take  the  property. 
Under  these  circumstances,  a  specific  performance  was  decreed 
against  the  vendee.  Not  being  present  at  the  sale,  he  could  not 
have  been  influenced  by  competition  to  bid  more  than  the  value. 
He  stood  in  the  situation  of  an  assignee  of  the  purchaser,  and 
in  this  view  it  must  be  a  strong  case  of  fraud  to  avail  him  against 

the  vendor.(l) 

22.  In  one  case,  Sir  Wm.  Grant  questions  Bezwell  v.  Cliris- 
tie,  and  regards  the  opinion  as  too  broad  for  the  facts  of  the 
case.  He  further  remarks,  that  Howard  v.  Castle  proceeded 
upon  the  ground  of  fraud.  There  was  no  real  bidder,  and  there 
were  several  bidders  for  the  vendor.  In  Conolly  v.  Parsons,  (3 
Ves.  625)  Ld.  Rosslyn  doubts,  whether  there  can  be  a  fraud  of 
this  nature.  Sir  Wm.  Grant  is  of  opinion,  that  if  bidders  are 
employed,  not  in  defence,  to  prevent  an  under-sale,  but  to  take 
advantage  of  the  eagerness  of  bidders,  to  screw  up  the  price  ;  a 
Court  of  Equity  would  not  justify  the  transaction.  So  also, 
where  there  are  several  bidders  for  the  vendor.(2) 

23.  At  an  auction  sale  of  land,  a  person  bid  for  the  vendor 
£16  per  acre,  upon  private  notice  to  the  auctioneer.  After  a 
contest  with  bona  f.de  bidders,  the  property  was  sold  for  over 
^101,  and  some  days  afterwards  the  vendee  paid  the  duty.  He 
was  decreed  to  perform  his  contract,  with  costs.(3) 

24.  On  an  action  of  assumpsit  for  failure  to  complete  the  pur- 
chase of  a  horse,  the  defendant  cannot  under  the  general  issue 
give  evidence  of  an  auction  sale,  and  that  the  vendor  employed 
puffers.     There  should  be  a  special  plea.(4) 

25.  It  has  been  held  in  South  Carolina,  that  the  employment 
of  a  bidder  for  the  vendor  is  not  illegal,  although  no  notice  be 
given,  and  the  price  be  thereby  very  much  enhanced.  Thus,  at 
a  sale  of  land  there  were  bona  fide  bidders  up  to  818  or  820 
per  acre,  after  which  the  bidding  was  confined  to  the  puffer  and 
the  defendant,  who  purchased  the  land   at  $44.     The  vendee 

(1)  Smith  V.  Clarke,  12  Ves.  jun.  477. 

(2)  lb. 

(3)  Bramley  v.  Alt,  3  Ves.  jun.  620. 

(4)  Icely  V.  Grew,  6  C  &.  P.  671. 


174  SALES  AT  AUCTION.  [Chap.  VI. 

was  a  good  judge  of  the  land,  lived  in  the  neighborhood,  and 
was  acquainted  with  the  premises,  while  the  by-bidder  enjoyed 
none  of  these  advantages.  The  latter  also  communicated 
openly  with  the  owner.  The  property  was  an  old  family  seat, 
which  was  sold  with  reluctance,  and  merely  for  the  purpose  of 
effecting  a  division,  and  for  which  therefore  the  owner  was  jus- 
tified in  securing  a  large  price.  Specific  performance  of  the 
contract  was  decreed  against  the  defendant,  (1) 

26.  While  the  law,  in  favor  of  a  vendee,  avoids  a  sale  on  the 
ground  of  secret  measures  used  to  enhance  the  price,  it  equally 
aims  to  protect  the  vendor,  by  discountenancing  any  unfair  at- 
tempt to  obtain  the  thing  sold  for  less  than  a  fair  price. 

27.  Certain  brokers  mutually  agreed,  before  an  auction  sale, 
that  only  one  of  them  should  bid  for  each  article  sold,  and  that 
all  the  articles  purchased  should  afterwards  be  sold  among  them 
at  a  fair  price,  and  the  difference  between  this  and  the  auction 
price  equally  divided.  Held,  this  was  an  indictable  conspira- 
cy.(2) 

28.  At  an  auction  sale  of  a  barge  upon  execution,  the  exe- 
cution creditor  stated  publicly,  that  he  built  it  for  the  execution 
debtor,  who  had  never  paid  him.  The  creditor  bid  for  the 
barge,  and  no  one  bid  against  him.  The  auctioneer  declining 
to  knock  it  down  to  him  at  the  first  bid,  a  friend  of  the  creditor 
bid  upon  it,  and  the  creditor  then  advanced  one  shilling,  upon 
which  the  barge  was  knocked  down  to  him,  and  he  paid  a  de- 
posit, as  part  of  the  price.  The  article  was  worth  ,^150,  and 
put  up  at  ^50,  and  the  creditor's  first  bid  was  £52.  The  cre- 
ditor brings  trover  for  the  barge,  the  auctioneer  having  refused 
to  deliver  it,  and  afterwards  re-sold  it  for  one  hundred  guineas. 
Held,  under  the  circumstances,  the  plaintiff  gained  no  property 
in  the  barge,  and  a  verdict  in  his  favor  was  set  aside  by  the 
Court.(3) 

29.  The  owner  of  an  execution,  upon  which  property  was  to 
be  sold,  agreed  with  other  persons  to  prevent  the  usual  compe- 
tition at  sales  of  this  description,  in   order  to  leave  a   balance 

(1)  Jenkins  v.  Hogg,  2  Const.  S.  C.  821. 

(2)  Levi  V.Levi,  6  Car.  &  P.  239.  3  John.  Cas.  29.  13  John.  112.  6. 194.  8, 
•444. 

(3)  Fuller  v.  Abrahams,  6  Moore,  316. 


Sect.    IV.]  WHAT    AVOIDS    AN     AUCTION    SALE.  175 

due  upon  the  execution,  and  that  he  might  thus  seize  other 
lands.  Tlie  sale  was  consequently  made  for  a  mere  nominal 
price.     Held,  it  was  void.(l) 

;30.  At  an  auction  sale,  the  agent  of  the  vendor  bid  for  the 
vendee.  He  was  known  to  be  the  vendor's  agent,  began  to  bid 
early,  and  was  the  only  real  bidder,  except  the  purchaser.  Held, 
a  bill  for  specific  performance  could  not  be  sustained  by  the 
vendee.  The  circumstance  above  mentioned  chilled  the  sale, 
and  prevented  the  vendor  from  obtaining  so  high  a  price  as  he 
otherwise  would.  Nor  did  it  make  any  difference,  that  the  per- 
sons in  attendance  regarded  the  agent  as  doing  what  the  law 
would  not  allow ;  because,  though  illegal,  the  practice  was 
known  to  be  a  common  one.  But,  on  the  other  hand,  the  Court 
refused  to  set  aside  the  contract,  upon  a  cross  bill  by  the  ven- 
dor, leaving  the  purchaser  to  his  action  at  law.  (2) 

(1)  Troup  V.   Wood,  4  John.  Cha.  228. 

(2)  Twining  v.  Morrice,  2  Bro.326, 


CHAPTER  VII 


LIEN. 


1.  General  principle ;  distinction  between  sales  of  chattels  and 
of  land ;  lien  depends  on  possession  ;  when  lost,  notwith- 
standing possession  ;  whether  the  right  continues  against 
a  second  purchaser. 

21.  Effect  of  part-delivery  upon  the  right  of  lien. 

24.  Sale  on  credit. 

27.    Waiver  of  a  lien. 

29.  Lien  between  part-owners. 

1.  When  a  contract  of  sale  is  completed  by  any  of  the 
methods  enumerated  in  the  first  chapter,  the  vendee  acquires  an 
absolute  right  of  property,  and  a  right  of  possession  also,  sub- 
ject only  to  the  lien  of  the  vendor  for  the  price,  if  this  has  not 
been  paid.  If  the  vendee  tender  the  price,  and  the  vendor  re- 
fuse it,  the  former  may  then  seize  the  goods,  or  have  an  action 
against  the  latter  for  detaining  them.  It  has  been  very  justly 
observed,  in  relation  to  the  acts  necessary  to  constitute  a  trans- 
fer of  chattels,  that  what  is  sufficient  as  an  acceptance,  to  take 
the  case  out  of  the  Statute  of  Frauds,  is  not  always  sufficient  to 
constitute  a  delivery  of  the  possession.  And  wh^i  is  sufficient 
to  vest  the  property  in  the  vendee,  is  not  always  sufficient  to 
deprive  the  vendor  of  his  lien  for  the  price.  (1)* 

(1)  Long  on  Sales,  (Am.  Ed.)  265. 


*  A  lien  IS  said  to  be  neither  jus  in  re  nor  jus  ad  rem,  but  a  simple   right  of  re- 


Chap.  VII.]  LIEN.  '  177 

2.  The  vendor  of  goods  has  no  lien  upon  them  for  the  price, 
corresponding  (o  that  of  the  vendor  of  land.  The  lien  of  the 
latter,  is  a  doctrine  not  found  in  the  ancient  common  law,  but 
belonging  to  equity,  and  transplanted  from  the  civil  law.  There 
is  no  case,  in  law  or  equity,  either  in  Great  Britain  or  the  Unit- 
ed States,  which  holds  that  after  a  sale  of  goods  and  absolute  de- 
livery to  the  vendee  in  person,  the  vendor  can  reclaim  them  for 
non-payment  of  the  price.(l) 

3.  The  right  of  lien  cannot  exist  without  possession,  notwith- 
standing an  equity  in  favor  of  the  party  claiming  it.  It  has 
been  doubted,  whether  a  mere  constructive  delivery  is  sufficient 
to  destroy  this  right  ;  and  perhaps  it  is  too  much  to  say,  that  in 
every  possible  case  it  would.  But,  in  general,  it  is  immaterial, 
whether  the  delivery  be  actual  or  constructive.  And  a  party 
having  a  lien  does  not  lose  it  by  parting  with  the  possession  for 
a  particular  purpose,  the  delivery  must  be  with  notice  of  such 
lien,  and  of  an  intention  to  retain  it.(2) 

4.  Where  there  has  been  a  delivery  at  the  time  of  sale,  and 
security  given  for  the  price,  but  with  an  agreement  that  the 
vendor  shall  have  a  claim  upon  the  property  till  actual  payment; 
his  lien  is  lost,  and  does  not  revive  by  his  coming  again  into 
possession  under  the  administrator  of  the  vendee. 

(1)  Lupin  V.  Marie,  6  Wend.  77. 

(2)  Parks  v.  Hall,  2  Pick.  212.  Clemson  v.  Davidson,  5,  Binn.  398.  8  Pick.  73. 
Heywood  v.  Waring,  4  Cami>.  291.  3  Price,  547.  I  Glyn.  &  J.  116.  Hall  v. 
Jackson,  20  Pick.  198. 


tainer.  The  right  depends  on  contract,  express  or  implied.  And  no  such  contract 
can  be  implied)  where  a  parly  acts  adversely  to  those  for  whom  ho  makes  a  payment. 
Meany  v.  Head,  1  Mas.  319  Allen  v.  Ogdcn,  1  Wash.  174.  See  2  Camp.  579.  S 
Lit.  98.  Lit.  Sel.  Cas.  280.  2  Meri.  404.  4  Taun.  807.  6  M.  &  S  180  Lien'ia 
a  tie,  hold  or  security  upon  things  \\hich  a  party  has  in  custody,  till  payment  of  his 
debt.  There  can  be  no  lien,  where  the  thing  is  annihilated,  or  possession  given  up 
voluntarily  and  without  fraud,  or  where  articles  are  furnished  under  a  particular  agree- 
ment. So  a  party  cannot  claim  a  lien  against  Jthe  government,  because  not  subject 
to  suit,  nor  strictly  a  debtor.  Thus  an  inn-keeper  cannot  detain  horses  used  in  carry- 
ing the  mail.  U.  S.  v.  Barney,  2  Hall's  Law  Jour.  128.  A  lien  is  a  personal  right, 
and  not  assignable.  Dauhigny  v.  Duval,  5  T.  R.  604.  It  is  the  same  at  law  and  in 
Equity.  Oxenham  v.  Esdaih,  2  Y.  &  Jer. 493.  2  Mer.  404.  It  cannot  arise  from  a 
wrongful  act.     2  Selw.  1358.     1  Camp.  12. 

23 


178  I'EN.  [Chap.  VII. 

5.  It  was  agreed  between  the  vendor  and  vendee  of  a  coach, 
that  the  former  should  have  a  claim  upon  it,  if  not  duly  paid  for. 
Four  bills  of  exchange  on  time  were  given  for  the  price,  and 
the  coach  was  delivered.  The  vendee  having  died,  and  the 
bills  being  unpaid,  his  administrator  sent  the  coach  to  the  ven- 
dor to  be  repaired,  and  the  latter  refused  to  re-deliver  it  with- 
out payment.  The  administrator  brings  trover  against  him. 
Held,  the  agreement  amounted  to  a  mere  license  from  the  ven- 
dee to  the  vendor,  which  was  personal  to  the  former,  and  did 
not  bind  his  representative.  Hypothecation  is  unknown  in 
England.  Had  the  coach  been  taken  from  the  vendee  himself, 
the  contract  would  have  been  a  bar  to  any  action  by  him.(l)* 

6.  A  distinction  is  to  be  observed,  however,  between  the 
mere  lien  of  a  vendor,  which  is  destroyed  by  delivery,  and  a 
condition  of  payment  annexed  to  the  sale,  which  may  continue 
in  force,  even  against  subsequent  purchasers  from  the  vendee, 
although  recognized  by  the  parties  under  the  name  of  a  lien. 
It  is  said,  the  doctrine  that  the  lien  of  a  vendor  until  payment 
depends  on  possession,  is  applicable  only  to  absolute  sales.(2) 

7.  A  sold  to  B  a  yoke  of  oxen  for  a  certain  price,  to  be  paid 
at  a  future  time  ;  A  to  hold  them  till  payment.  A  allowed  the 
oxen  to  go  into  possession  of  B,  who  sold  to  C,  and  C  to  D, 
for  a  valuable  consideration,  and  without  notice  of  the  lien  of 
A.  Held,  this  lien  still  continued  in  force,  and  that  A  might 
maintain  trover  against  D,  even  before  the  period  of  credit  ex- 
pired.(3)      (See  Conditional  Sale  and  Conditional  Delivery.) 

8.  But  a  somewhat  different  doctrine  seems  to  be  recognized 
by  another  case  in  the  same  state.  A  authorized  B,  as  his 
agent,  to  sell  logs  belonging  to  A;  the  logs  in  every  event  to 

(1)  See  Harrison's  Digest. 

(2)  Barren  v.  Pri;tchard,'2  Pick.  515. 

(3)  Tibbetts^v.  Towle,  3FairC341. 


*  Where  a  policy-broker,  having  a  general  lien  on  the]  policy  of  insurance,  parted 
with  it,  but  afterwards  came  into  possession  of  it  again,  held,  his  lien  was  thereby 
revived.  Whitehead  v.  Vaughn  Co.  Bt.  Laws,  442,  Long,  263.  See  1  Star.  408. 
One  having  a  lien  upon  property,  delivered  it  to  a  carrier  on  account  and  at  the  risk 
of  his  principal,  though  this  was  unknown  to  the  carrier.  Held,  he  could  not  stop  in 
transitu  and  obtain  a  re-delivery  to  him,  under  a  bill  of  lading  from  the  carrier  giv- 
en during  the  voyage.    Sweet  v.  Pyni,  1  E.  4. 


Chap.  VII.]  LIEN.  179 

remain  A's  property  till  the  price  should  be  paid  or  amply  se- 
cured. B  sold  the  logs,  and  allowed  the  vendee  to  take  pos- 
session without  payment ;  the  latter  agreeing  that  the  lien  of  A 
should  continue  till  payment  be  made.  Held,  this  sale  was  not 
binding  upon  A,  because  it  varied  from  the  authority  given  to 
B,  inasmuch  as  a  lien  without  possession  constituted  at  best  an 
imperfect  security,  and  probably  none  at  all.(l) 

9.  The  following  cases,  though  not  all  strictly  relating  to  sales 
of  personal  property,  may  properly  be  cited  as  bearing  upon  the 
point  of  possession,  above  considered. 

10.  In  the  autumn  of  1825,  C  contracted  with  A  and  B,  that 
they  should  cut  all  the  pine  timber  on  his  land,  fit  for  boards, 
which  any  prudent  person  would  cut ;  carry  one  quarter  part  of  the 
logs  to  D,  for  C's  share,  and  the  other  three  quarters  to  the  same 
place,  to  be  sawed  and  delivered  to  C,  who  should  remain  own- 
er of  the  whole,  till  satisfied  that  his  quarter  was  of  the  average 
quality  of  the  whole,  and  till  paid  his  entire  debt  by  A  and  B. 
If  they  should  fail  to  take  the  timber  the  next  winter  and  spring, 
they  were  to  pay  the  value  of  a  quarter  of  what  was  left ;  the 
timber  to  remain  pledged  for  this  part  also.  A  and  B  did  not  cut 
the  timber  till  1827.  Before  reaching  the  place  appointed,  they 
sold  it  to  E,  being  largely  in  debt  to  C  at  the  time.  C  brings 
replevin.  Held,  C's  lieu  embraced  logs  cut  after  the  winter 
and  out  of  the  bounds  mentioned  ;  that  A  and  B  were  special 
bailees,  and  had  no  power  to  sell,  and  the  sale  put  an  end  to 
their  title.(2) 

11.  A  sent  a  ship  for  repairs  to  the  yard  of  B,  B  agreeing  to 
find  timber  therefor,  which  he  did,  to  the  amount  of  =£200.  The 
ship  being  advertised  for  sale,  B  forbade  the  sale  until  he  should 
be  paid.  The  agent  of  A  assented  to  this  requisition,  promised 
payment  from  the  purchase-money  of  the  vessel,  and  gave  au- 
thority to  the  auctioneer  accordingly.  C  purchased  the  ship  ;  B 
immediately  demanded  payment  from  him  ;  and  he  agreed  to 
pay  the  auctioneer  by  a  certain  day.  Held,  until  payment,  he 
could  not  have  trover  for  the  vessel. (3) 

12.  Lease  of  land  from  A  to  B.     A  to  have  a  hold  or  lien  on 

(1)  Cowan  V.  Adams,  1  Fairf.  374. 

(2)  Emerson  v.  Fisk,  6  Greenl.  200. 

(3)  Norris  v.  Williams,  1  C.  &  M.  842. 


180  LIEN.  [Chap.  VII. 

the  crops  till  payment  of  the  rent.  Held,  this  agreement  was 
merely  executory,  and  gave  A  no  general  or  qualified  property 
in  the  crops,  till  raised  and  delivered  to  him.(l)* 

13.  A  had  two  pipes  of  wine  in  a  bonded  warehouse,  in  the 
name  of  B,  who  had  secured  the  duties.  A  sold  to  C,  giving 
him  a  delivery  order,  and  C  agreeing  to  pay  the  duties.  B  paid 
them,  carried  the  wine  to  his  cellar,  and  was  repaid  by  A.  C 
never  requested  a  transfer  to  his  name,  but  took  one  pipe,  and 
paid  rent  to  B.  Held,  B,  by  request  of  A,  might  retain  the 
other  for  the  duties. (2) 

14.  The  lien  of  the  vendor  will  cease,  notwithstanding  his 
actual  possession,  where  he  neglects  to  take  the  step  for  obtain- 
ing payment,  which  was  provided  for  in  the  contract,  omits  to 
claim  a  lien  in  reasonable  time,  and  delivers  a  part  of  the  pro- 
perty. 

15.  A,  at  Bristol,  sold  goods  to  B,  to  be  paid  for  by  B's  ac- 
ceptance of  A's  draft.  The  goods  were  weighed  and  an  in- 
voice furnished,  but  they  were  left  in  possession  of  A.  A  neg- 
lected to  draw  a  bill.  B  sold  portions  of  the  goods,  and  gave 
orders  upon  A  to  the  purchasers,  upon  which  A  delivered  them 
the  quantities  sold.  Afterwards,  B  sold  a  specific  portion  to  C 
in  London,  receiving  payment  therefor,  and  giving  C  an  order 
upon  A  to  deliver  the  goods,  which  C  transmitted  to  A.  On 
the  fourth  day  from  A's  receiving  the  order,  B  became  bank- 
rupt.    A  then  first  refused  to  deliver  to  C,  claiming  a  lien  upon 

(1)  Brainaid  v.  Burton,  5  Verm.  97. 

(2)  Winks  V.  Hassall,  9  B.&  C.  372. 

♦  Agreement  between  A,  the  owner  of  a  saw-mill,  and  B,  that  A  should  have  a  lien 
on  all  boards  sawed  for  B,  for  the  charges  of  sawing ;  the  boards  to  be  removed  a 
short  distance  from  the  mill,  but  the  lien  to  hold  till  payment.  Held,  the  lien  was  as 
effectual  as  if  A  had  actual  possession.  Wheeler  v.  M'Farland,  10  Wend.  31S.  See 
Mount  V.  Williams,  1 1  Wend.  77.  Sumner  v.  Hamlet,  12  Pick.  76.  A  purchased 
r;oods  of  B,  which  by  consent  remained  in  B's  store.  While  there,  A  borrowed  mo- 
ney of  C,  giving  him  an  order  on  B  for  the  goods,  which  were  removed  to  C's  store, 
but  afterwards,  by  A's  order,  carried  back  to  B's  store,  where  they  were  attached  by 
B  and  other  creditors  of  A.  C  brings  an  action  against  the  officer,  and  recovers 
judgment,  the  facts  showing  a  lien  in  his  favor  upon  ihc  goods.  Jones  v.  Baldwin,  12 
Pick.  316.  As  to  the  maritime  lien  upon  a  ship,  for  supplies  furnished  her,  which 
does  not  depend  at  all  upon  possession,  see  7  Cow.  670.  4  ^Mass.  92.  11.72.  3 
C  ranch,  140. 


Chap.  VII.]  LIEN.  181 

the  goods  for  the  price.  Held,  C  might  maintain  trover  against 
A;  that  A  was  bound  to  give  immediate  notice  of  his  refusal 
to  deliver  the  goods ;  and  (it  seems)  that  after  neglecting  to 
draw  a  bill,  delivering  samples  to  sell  by,  and  answering  other 
orders,  there  would  be  no  lien,  even  though  he  had  given  im- 
mediate notice.  After  the  sale,  the  warehouse  of  A  became 
that  of  B.(l) 

IG.  But  where  A  agreed  to  sell  goods  to  B,  who  paid  a  sum 
of  money  to  bind  the  bargain  ;  and  the  goods  were  packed  in 
cloths  furnished  by  B,  and  deposited  in  a  building  of  A's  till  B 
should  send  for  them,  A  declaring  at  the  same  time  that  they 
should  not  be  carried  away  without  payment ;  held,  though  the 
property  in  the  goods  passed  to  B,  A  still  retained  a  lien  for  the 
price.  (2) 

17.  So  where  constructive  acts  of  delivery  have  taken  place, 
but  not  the  particular  act  which  usage  has  established  for  trans- 
ferring a  title,  the  vendor  may  still  retain  a  lien  even  against  a 
purchaser  from  the  vendee.* 

18.  A  sold  to  B  a  quantity  of  rum,  lying  in  the  warehouse  of 
C  at  L,  and  delivered  him  a  marked  and  numbered  invoice. 
B  accepted  A's  draft  for  the  price,  and  sold  and  received  pay- 
ment for  the  rum  from  D.  There  was  a  usage  at  L,  for  the 
vendor  to  give  the  vendee  delivery-orders,  addressed  to  the 
warehouseman,  who  accepted  such  orders.  But  no  order  was 
given  in  the  present  case  by  A  to  B,  except  for  a  small  portion 
of  the  rum,  which  B  received.  By  permission  of  B,  but  with- 
out the  knowledge  of  A,  D  gauged  and  coopered  the  casks  in 
the  warehouse,  and  marked  them  with  his  initials.  B's  accep- 
tance of  the  draft  having  been  dishonored,  held,  under  the  cir- 
cumstances, A  had  alien  on  the  rum  for  the  price. (3) 

(1)  Green  V.  Haythorne,  1  Star.  447. 

(2)  Goodall  V.  Skelton,  2  H-  131.  316.    (1  Cr.  &  M.  333.    6  N.  &  Man.'  608.) 

(3)  Di-xon  V.  Yates,  2  Nev.  &  M.  177. 

*  Supplies  furnished  to  West  India  estates  have  been  held  to  give  a  lien  upon  the 
produce  of  such  estates,  by  virtue  of  a  usage  of  tho  parties.  Simond  v.  Hibbert,  I 
Russ.  &  My.  719. 


18-  LIEN.  [Chap    VII. 

19.  Ill  Maine  it  is  held,  that  the  usual  contract  lien  upon 
timber,  for  the  price  o{  stumpage,  attaches  to  the  proceeds  in  the 
hands  of  a  bona  fide  purchaser  for  valuable  consideration,  hav- 
ing notice  of  the  lien. (I) 

20.  Where  a  vendee  assigns  the  goods,  not  in  the  usual  course 
of  trade,  but  by  way  of  indemnity  against  liabilities  incurred 
for  him  ;  the  vendor  has  the  same  lien  against  the  assignee, 
which  he  would  have  against  the  vendee  himself  (2) 

21.  The  effect  of  ?i  part-ddivcrTj  upon  the  vendor's  right  of 
lien  has  been  already  incidentallif  noticed  ;*  but  the  books  fur- 
nish some  cases,  which  have  been  decided  chiefly  or  exclusively 
upon  this  particular  point.  It  seems  to  be  now  settled,  though  for- 
merly somewhatdoubtful,  that  the  seller's  allowing  the  purchaser 
to  take  away  a  part  of  the  goods  without  payment  is  not  an  en- 
tire waiver  of  the  lien,  if  there  be  an  intention  to  retain  the 
rest.  But  it  is  otherwise,  where  delivery  of  a  part  of  the  goods 
is  made  in  the  progress  of,  or  with  a  view  to,  the  delivery  of  the 
whole. (3)f 

22.  The  plaintiff  sold  to  one  A  a  raft  of  lumber,  to  be  deliv- 
ered at  Albany,  and  paid  for  on  delivery.  A  agreed  with  the 
defendant  to  deliver  the  lumber  to  him,  to  be  sold  on  commis- 
sion. The  plaintiff,  having  brought  the  raft  to  Albany,  fasten- 
ed it  to  the  dock  of  the  defendant,  and  informed  the  workmen 
employed  there  that  it  had  been  purchased  by  A.  The  men 
thereupon  began  to  pile  the  lumber  upon  the  dock.  The  plain- 
tiff went  away,  and,  upon  his  return,  some  hours  afterwards, 
found  nearly  the  whole  quantity  had  been  piled.  Having  learn- 
ed, while  absent,  that  A  had  absconded,  he  forbade  the  piling  of 
any  more,  upon  this  ground.  During  the  piling,  the  defend- 
ant advanced  money  and  goods  to  A  on  account  of  the  lumber. 

(1)  Wanen  v.  Bartlett,  Maine,  Law  Repor.  May,  1839,  p.  14. 

(2)  Lupin  V.  Marie,  6  Wend.  77. 

(3)  Long  onSales,  (Am.  EJ.)  264. 


*  See  Part-Delivery. 

t  Part-payment  of  the  price  destroys  the  vendor's  lien,  only  pro  <a«<0.  Feisev. 
Wray,  3  E.  93.  Hodgson  v.  Ley,  7  T.  R.  440.  So  where  a  proportional  part  of  the 
goods  is  delivered.  Long,  264.  The  right  of  lien  continues,  though  a  i)art  of  the 
debt  be  barred  by  the  statute  of  limitations.    Spears  v.  Hartly,  3  Esp.  81. 


Chap.  VII.]  LIEN.  183 

The  plaintiff,  having  demanded  it  from  the  defendant,  brings 
trover  against  him.  Held,  the  action  might  he  sustained.  As 
the  sale  was  of  the  tvhole  raft,  the  plaintiff  could  not  demand 
payment  till  the  whole  was  delivered  ;  hence  there  was  no  de- 
lay in  demanding  payment,  which  raised  any  presumption  of  a 
credit.  It  was  sufficient,  for  the  purpose  of  preserving  a  lien 
upon  the  whole,  for  the  vendor  to  be  at  the  place  of  delivery, 
and  demand  payment  when  the  whole  was  delivered. (1) 

23.  A  sold  to  B  his  whole  stock  of  goods,  being  a  part  at 
Concord,  and  a  part  at  Portsmouth.  The  former  portion  was  de- 
livered, and  the  latter  agreed  to  be  delivered  at  C,  and  accord- 
ingly sent  there  by  a  carrier  from  P.  Before  arrival  of  the 
goods,  B  became  insolvent,  and  one  of  his  creditors,  before  de- 
livery to  him,  attached  them  with  his  consent.  Held,  the  facts 
did  not  show  a  constructive  delivery  of  the  whole  property,  but 
A  retained  a  lien  upon  the  part  attached.  The  carrier  was  A's 
agent,  and  there  was  nothing  to  show  that  he  had  authority  to 
deliver  to  B.  Hence  the  fact  that  the  goods  were  attached 
with  B's  consent,  was  immaterial.  They  were  in  law  still  in 
A's  possession. (2)* 

24.  Where  a  sale  is  made  on  credit,  the  vendor  has  no  lien 
for  the  price.  But  if  the  goods  remain  in  his  possession  till  the 
credit  expires,  he  may  retain  them  till  payment.(3) 

25.  Where  a  vendor  takes  a  promissory  note  in  payment,  and 
negotiates  it,  and  the  note  is  afterwards  dishonored  in  the  hands 
of  the  indorsee,  this  does  not  revive  the  vendor's  lien  upon  the 
goods. 

26.  A  gave  B  a  general  authority  to  sell  hay  for  him.  B  ad- 
vertised a  sale,  upon  the  conditions,  that  a  certain  deposit 
should  be  paid,  three  months'  credit,  with  approved  security, 
given  for  the   remainder  of  the  price,  and  the  lots  taken  away 

(1)  Palmer  v.  Hand,  13  John.  434. 

(2)  Williams  v.  Moore,  5  N.  H.  235. 

(3)  2  N.  &  M.  177.  Bailey  v.  Adams,  14  "Wend.  201.  See  Culler  v.  Pope,  1 
8hepl.  377. 

*  This  case  would  seem  to  fall  quite  as  appropriately  under  the  head  of  stoppage 
in  trantitu,  as  that  of  lien  ;  but  the  Court  appear  to  have  referred  it  wholly  to  the 
latter. 


184  LTEN.  [Chap.  VII. 

within  forty  weeks  after  the  sfile.  B  sold  to  C,  taking  his  pro- 
missory note  for  the  price.  C  requested  permission  of  B  to 
cut  a  part  of  the  hay,  which  was  granted,  and  C  accordingly 
did  cut  and  remove  a  part  of  it,  but  B  forbade  his  carrying 
away  any  more.  B  indorsed  the  note  given  by  C,  and  procur- 
ed a  discount  of  it  at  his  banker's,  who  credited  him  with  the 
amount,  with  the  proper  deduction.  The  note  was  dishonored, 
and  B  became  bankrupt.  The  banker  and  C  entered  into  an 
agreement,  that  C  should  sell  him  the  remainder  of  the  hay,  re- 
ceiving payment  partly  in  money,  and  partly  by  a  restoration  of 
his  own  note.  Within  the  forty  weeks,  the  banker  demanded 
the  hay  of  A,  who  refused  to  deliver  it.  In  an  action  of  trover 
by  the  banker  against  A,  held,  1.  if  A  had  a  lien  upon  the  hay 
after  the  sale,  though  a  note  was  given  for  the  price,  the  remo- 
val of  a  part  of  the  property  did  not  extinguish  such  lien,  de- 
livery of  part  not  being  shown  to  be  by  way  of  delivery  of  the 
whole.*  But,  2.  that  A  had  no  such  lien,  because  the  note 
given  by  C,  afterwards  discounted,  and  still  outstanding,  was  a 
payment,  the  use  that  B  made  of  the  money  received  for  the 
note  did  not  vary  the  principle. (l)f 

27.  The  question  sometimes  arises,  how  far  a  vendor  waives 
his  right  of  lien,  by  resorting  to  legal  process  against  the  ven- 
dee for  recovery  of  the  debt. 

28.  A  sold  to  B  a  carriage,  to  be  paid  for  partly  in  cash,  on 
delivery,  and  partly  by  bill  at  a  date  specified.     B  neglecting  to 

(1)  Bunney  v.  Poyntz,  1  Nev.  &  M.  229.  4  Barn.  &  Ad.  568.  See  Bailey  v. 
Adams,  14  Wend.  201. 

*  C  asked  permission  to  take  only  a  part  of  the  hay  ;  and  herein  the  case  differed 
from  that,  where  there  is  a  part-delivery,  and  still  neither  before  nor  at  the  lime  any 
intention  appears  to  separate  a  part  from  the  rest.  (As  in  Slubey  v.  Heyward,  2 
H.  Bl.  504.) 

I  It  has  been  held  in  Vermont,  that  a  lien  is  lost,  though  possession  be  retained,  by 
taking  a  note,  and  giving  a  receipt  for  it  as  payment.  Hutchins  v.  Olcutt,  4  Verm. 
549.  The  defendant  sold  a  quantity  of  cotton  in  his  warehouse  to  A  on  a  credit  of 
six  months,  and  an  undivided  portion  of  the  same  to  B,  taking  his  note  at  six  months. 
The  broker  said  the  cotton  might  remain  in  the  warehouse,  till  the  room  should  be 
wanted  for  some  other  purpose.  B,  becoming  insolvent,  assigned  his  property  to  the 
plaintiff".  The  defendant  refuses  to  deliver  the  cotton,  till  his  note  is  paid  or  secured. 
Held,  the  plaintiff" might  recover  against  him.     Barrett  v,  Goddard,  3  Mas.  107. 


Chap.  VII.]  LIEN.  185 

take  the  carriage,  A  recovered  against  him  in  an  action  for  goods 
bargained  and  sold,  and  also  for  cleaning  the  carriage.  The  car- 
riage was  afterwards  taken  by  a  sherifiF,  on  a  process  against  B, 
with  notice  of  A's  lien,  and  A  brings  an  action  against  the  sheriff 
for  thus  taking  it.  Held,  A  retained  a  lien  upon  the  carriage 
till  the  judgment  in  the  former  action  was  paid.  That  action 
was  for  non-performance  of  the  contract,  and  the  goods  still  re- 
mained in  custody  of  the  vendor.  If  it  had  been /or  goods  sold 
and  delivered,  the  case  might  have  been  different.  And,  as  be- 
tween A  and  B,  if  the  latter  suffered  any  thing  from  the  deten- 
tion of  the  carriage,  after  verdict  and  before  payment,  perhaps 
Equity  would  interfere. (1)* 

29.  The  question  of  lien  sometimes  arises  between  part-own- 
ers of  personal  property,  standing,  with  reference  to  each  other, 
in  the  relation  of  vendor  and  vendee.  The  following  case,  while 
it  involves  several  of  the  principles  heretofore  stated,  is  modified 
by  the  circumstance  of  this  peculiar  connexion  between  the 
parties. 

30.  A,  B  and  C  and  others  were  part-owners  of  a  whale-ship. 
Their  usual  course  of  proceeding  with  the  cargo,  on  the  return 
of  the  ship,  was  as  follows.     The  whale-bone  was  taken  and  sold 

(I)  Houlditch  V.  Desanges,  2  Stark.  357.  But  see  Legg  v.  Willard,  17  Pick.  140. 
See  also  Lloyd  V.  Holly,  8  Conn.  491.  Jacobs  v.  Latour,  2  M.  &  P.  20.  5  Bing. 
131. 


*  A  very  valuable  note  upon  the  subject  of  lien,  and  more  particularly  upon  the 
question  by  what  acts  this  right  is  waived,  may  be  found  in  Mr.  Metcalf's  Edition  of 
Yelverton,  67  a.  The  doctrine,  often  incidentally  advanced,  that  there  can  be  no  hen, 
where  the  debt  due  is  a  matter  of  express  contract,  is  learnedly  examined  and  success- 
fully refuted.  It  is  further  staled  (p.  67  i.)  tliat  a  lien  is  to  be  considered  as  waived 
only,  1.  where  there  is  a  special  agreement,  which  is  inconsistent  with  it,  such  as  an 
agreement  for  credit:  or  where  possession  is  gained  for  some  other  specific  purpose. 
2.  Where  the  party  has  not  possession,  or  has  voluntarily  parted  with  it.  3.  Where 
he  is  guilty  of  laches  in  enforcing  his  right.  A  lien  is  not  waived  by  the  neglect 
of  a  party  to  state  that  he  retains  the  property  on  that  ground.  Nor  by  his  refusing 
to  give  up  other  goods,  in  connexion  with  the  property  in  question,  on  which  goods 
he  has  no  lien.  So  where  A  had  a  lien  upon  certain  goods,  and  purchased  the  same 
from  a  trader  after  bankruptcy,  and,  upon  a  demand  by  the  assignee,  refused  to  sur- 
render them,  this  was  held  to  be  no  waiver  of  the  lien— the  lien  was  not  merged  in  the 
purchase.  White  v.  Gainer,  2  Bing.  23.  Otherwise,  where  a  parly  claims  to 
retain  the  goods  on  another  ground  than  that  of  lien.  Boardman  v.  Sill,  1  Camp. 
410  n. 

24 


186  LIEN.  [Chap.  VII. 

by  B,  and  the  ship's  expenses  paid  from  the  proceeds.  The 
blubber  was  deposited  in  a  warehouse  hired  of  C  by  the  ship- 
owners. The  oil  was  then  put  in  casks,  and  the  share  of  each 
owner  weighed  and  put  by  itself,  with  his  initials  on  the  casks. 
The  warehouseman  then  delivered  to  each  owner  his  share  of 
the  oil,  unless  the  ship's  husband  gave  notice  that  such  owner 
had  not  paid  his  share  of  the  expenses  ;  in  which  case  his  share 
of  the  oil  was  retained  till  payment  was  made.  On  the  arrival 
of  the  ship  in  1825,  the  above  course  was  adopted.  A's  share, 
amounting  to  twenty-nine  tons,  was  stowed  in  casks,  marked 
with  his  initials.  C  debited  A  in  account  with  a  portion  of  the 
warehouse  rent.  In  January  1826,  A  became  bankrupt.  Twen- 
ty tons  of  oil  had  been  previously  delivered  to  him,  but  the  rest 
remained  in  the  warehouse.  In  the  same  month,  the  ship's  hus- 
band notified  the  warehouseman  not  to  deliver  the  remainder, 
A's  share  of  the  expenses  remaining  unpaid.  The*assignees  of 
A  bring  trover  for  the  oil.  Held,  the  other  ship-owners  had  a 
lien  upon  A's  share,  which  had  not  been  divested  ;  that,  in 
view  of  the  previous  usage  of  the  parties,  the  appropriation  to  A 
of  a  specific  portion  of  the  oil,  by  putting  it  in  casks,  &c.,  was 
not  absolute,  but  qualified  ;  that  the  removal  of  the  twenty  tons 
made  no  difference  as  to  the  right  of  retaining  the  remaining 
nine,  because  these  were  considered  as  sufficient  security  for 
A's  share  of  the  expenses ;  that  the  debiting  of  the  rent  to  him 
did  not  impair  the  lien,  because  this  must  have  been  paid  before 
the  oil  was  taken  away,  or  deducted  from  A's  share  of  the  pro- 
ceeds of  sale,  in  case  the  other  owners  were  compelled  to  sell, 
for  payment  of  the  expenses ;  and  judgment  was  rendered  for 
the  defendants.(l) 

(I)  Holderness  v.  Shackells,  8  B.  &  0.  618. 


CHAPTER  VIII. 


STOPPAGE  IN  TRANSITU. 

1.  General  doctrine  ;  the  right  of  stoppage  compared  with  that 
of  lien,  and  a  rescinding  of  the  contract ;  history  of  the 
law  upon  the  subject ;  Courts  of  law  and  equity ,  jurisdic- 
tion  of. 

5.  Hoto  and  when  it  may  he  exercised. 

7.  By  what  kind  of  delivery  defeated. 

27.  Paramount  to  liens  against  the  vendee. 

28.  Cont  nues  while  any  act  is  to  be  done  by  the  vendor. 

34.  Knowledge  by  the  vendor  of  the  vendee's  insolvency. 

35.  Waiver  of  the  right  of  stoppage. 

37.  Transitus  ends,  when  the  goods  ai-riveat  their  destination. 

38.  Arrival  at  a  warehouse  or  other  depository. 
44,  Arrival  at  an  intermediate  place. 

48.  Possession  taken  by  the  vendee  before  the  end  oj  the  jour- 
ney. 
52.  Delivery  to  a  carrier,  Sfc. 
65,  Delivery  to  wharfingers,  S^c. 
70.  Stoppage  in  transitu  between  principal  and  agent. 
80.  After  a  bill  of  lading,  made  and  indorsed. 
99.  Possession  by  the  vendee  of  other  evidences  of  title.  , 
102.   Re-sale  by  the  vendee. 

108.  Part-payment. 

109,  Payment  by  bills,  ^c. 

111.   Consignment  by  debtor  to  creditor. 
114.    WIio  may  exercise  the  right. 


188  STOPPAGE    IN   TRANSITU.  [Chap,    VIII. 

1.  Nearly  connected  with  the  right  oHien,  which  was  consid- 
ered in  the  last  chapter,  is  that  of  stoppage  in  transihi.  The 
chief  points  of  difference  between  these  two  rights  are,  that  the 
former  ceases  whenever  the  property  sold  passes  out  of  the  ven- 
dor's hands,  that  it  may  be  exercised  in  all  cases  where  the  pur- 
chaser fails  to  make  payment  according  to  his  contract,  and  that 
it  does  not  exist  where  the  sale  is  upon  credit;  while  the  latter 
is  designed  to  restore  possession  to  the  vendor  after  he  has  part- 
ed with  it,  applies  only  in  cases  of  insolvency,  and  is  chiefly  ex- 
ercised where  the  sale  is  upon  credit,  because  it  is  for  the  most 
part  in  such  sales  that  the  vendor  parts  with  possession  without 
payment.  Stoppage  in  transitu  is  sometimes  called  an  extension 
of  the  right  of  lien. (I)  It  does  not,  like  the  latter,  apply,  where 
actual  or  constructive  possession  still  remains  in  the  shipper  or 
his  exclusive  agent.(2) 

2.  Stoppage  in  transitu  is  a  species  of  equitable  lien*  provided 
to  effect  the  purposes  of  substantial  justice  ;  and  not  a  rescinding 
of  the  contract.  It  is  the  act  of  one  party,  while  a  rescinding  of 
the  sale  is  the  mutual  act  of  both. f  After  stoppage  in  transitu, 
the  vendee  may  recover  the  goods,  by  complying  with  the  con- 
tract and  paying  the  price.  And,  on  the  other  hand,  the  vendor 
may  recover  the  price  in  an  action  for  goods  bargained  and  sold, 
if  ready  to  deliver  the  goods  on  payment ;  the  contract  provid- 
ing that  payment  should  precede  delivery.  So,  it  is  said,  stop- 
page in  transitu  does  not  render  the  delivery  of  goods  condi- 
tional.    Though  this  lien  be  enforced,  the  goods  strictly  belong 

(1)  See  Parks  v.  Hall,  2  Pick.  212.     12  Pick.  313. 

(2)  San  Jose,  &c.  2  Gall.  268. 


*  Ld.  Ellenborough  calls  it  "  a  sort  of  jus  postliminii."  Cose  r.  Harden,  4  E. 
218.  It  is  said  to  have  grown  out  of  the  hardship,  in  particular  cases,  of  the  rule,  that 
goods  consigned  to  a  bankrupt,  which  arrive  after  the  act  of  bankruptcy,  arc  consid- 
ered as  part  of  the  bankrupt's  effects.  Scott  v.  Pettit,  3  B.  &  P.  472,3.  The  first 
case  recognizing  the  right,  was  Snee  v.  Prescot,  1  Atk.  245,  in  which  Ld.  Hardwicke 
said,  that  the  vendor  may  regain  possession  by  any  means  short  of  absolute  violence. 
"  By  any  means  not  criminal,"  is  (he  expression  of  another  eminent  judge.  Holt,  20 
n.  It  is  said  never  yet  to  have  been  decided,  that  bankruptcy  is  of  itself  a  counter- 
mand of  goods  purchased.     Per  Ld.  Kenyon,  Ellis  v.  Hunt,  3  T.  R.  467. 

t  This,  however,  is  not  always  the  case.  A  sale  may  sometimes  be  rescinded  €X 
parte.    (See  Rescinding  of  Sales,  Ch.  10.) 


Chap.    VIII.]  STOPPAGE    IN    TRANSITU.  189 

to  the  vendee;  and,  if  they  are  of  more  value  than  the  lien, 
though  this  be  for  the  whole  price,  the  balance  belongs  to  the 
vendee.  It  would  be  absurd  to  say,  that  the  vendor  has  a  lien 
upon  his  own  goods.  On  the  above  grounds,  where  a  vendor  is 
prevented  by  false  pretences  from  exercising  the  right  of  stop- 
page in  transitu,  this  will  not  sustain  an  indictment  for  obtain- 
ing the  goods  by  false  pretences.(l) 

3.  It  vvassaid  by  Park,  J.,  (in  1828),  the  right  to  stop  in  tran- 
situ has  not  been  long  known  to  the  common  law,  perhaps  not 
above  seventy  years,*  having  been  at  that  time  transplanted 
from  the  Courts  of  Equity.  Yet  it  has  since  been  established  by 
such  a  variety  of  decisions,  that  it  is  now  regarded  with  favor  by 
the  common  law  courts,  as  a  right  which  they  are  always  dispos- 
ed to  assist;  not  proceeding  at  all  on  the  ground  of  the  contract 
being  rescinded  by  the  insolvency  or  bankruptcy  of  the  consignee, 
but  as  an  equitable  right,  adopted  for  the  purposes  of  substan- 
tial justice.  It  is  a  right  conferred  on  meritorious  persons,  and 
imposes  no  hardship  on  any  one.(2) 

4.  It  seems,  Equity  has  now  no  jurisdiction  in  relation  to  this 
right  ;t  and  it  certainly  will  not  enforce  the  right,  where  there 
has  been  a  complete  delivery,  notwithstanding  gross  fraud  in 
obtaining  the  goods. (3) 

5.  The  right  of  stoppage  in  transitu,  being  an  equitable  au- 
thority to  re-possess  the  goods  sold,  upon  the  insolvency  of  the 
vendee,  cannot  be  exercised  in  mere  caprice.     There  must  be 


(1)  Hodgson  V.  Loy,  7  T.  R.  445.  Holt,  20  n.  Jordan  v.  James,  5  Ohio,  98.  Stan- 
ton V.  Eaaer,  16  Pick.  474.  Kymer  v.  Suwercropp,  1  Camp.  109.  ,Rovvley  v.  Bii^e- 
low,  12  Pick.  313.  People  v.  Haynes,  14  Wend.  665,'6.  Buckley  v.  Furniss.  15 
Wend.  142,3. 

(2)  Tucker  v.  Humphrey,  4  Bing.  b\9.  Per  Ld,  Kenyon,  Northey  v.  Field,  2 
Esp.  614,  15.     12  Pick.  313.     Bartram  v.  Farebrother,  4  Bing.  585. 

(3)  Goodhart  v.  Lowe,  2  J.  &  W.  349.     Conyers  v.  Ennis,  2  Mas.  236. 


*  Long  (on  Sales,  p.  307)  says  the  practice  was  unknown  to  the  law  as  lately  as 
the  year  1690. 

t  Equity  will  not  grant  an  injunction  against  the  sale  of  a  ship,  on  the  appli- 
cation of  one  who  has  sold  goods  on  board  such  ship,  where  he  still  retains  the  right 
of  stoppage  in  transitu.    Goodhart  v.  Lowe,  2  Jac.  &  W.  349. 


190  STOPPAGE    IN    TRANSITU.  [Chap.    VIII, 

a  positive  exertion  of  the  right.     And   it  should   be  stated  as 
done  eo  intuitu,  and  adversely. (I)* 

6.  It  seems,  the  right  of  stoppage  in  transitu  is  not  affected 
by  lapse  of  time  after  the  sale.  (2) 

7.  A  vendor  may  part  with  his  property  and  dominion  by  a 
symbolical  and  constructive  delivery,  as  well  as  a  corporal  touch. 
But  he  has  the  right  of  stoppage  in  transitu  for  any  part  of  the 
price,  before  actual  delivery. (3) 

8.  In  some  of  the  earlier  cases,  particularly  that  of  Hunter  v. 
Peale,  (3  T.  R.  466  n.)  Ld.  Mansfield,  who  carried  the  doc- 
trine of  stoppage  in  transitu  a  great  way,  seemed  to  expect  that, 
in  order  to  put  an  end  to  this  right,  the  goods  must  come  to  the 
actual  corporal  touch  of  the  vendee.t  But,  in  a  subsequent 
case, (4)  Ld.  Ellenborough  says,  the  question  is,  whether  the 
party  to  whose  touch  the  property  actually  comes,  be  an  agent, 
so  far  representing  the  principal,  as  to  make  the  delivery  to  him 
a  full   and  final   delivery  to   the  principal,  and   not  a  delivery 

(1)  Per  Walworth.  Chancellor,  People  v.  Haynes,  14  Wend.  563.  Per  Ld.  Ellen- 
borough,  6  E.  380. 

(2)  Buckley  v.  Furniss,  15  Wend.  137. 

(3)  Jordan  v.  James,  5  Ohio,  98. 

(4)  Dixon  V.  Baldwen,  5  E.  175. 

+  But  the  right  of  stoppage  in  transitu,  though  adverse  to  that  of  the  consignee, 
is  not  defeated  by  a  communication  from  him  to  the  vendor,  revoking  the  order,  de- 
clining to  receive  the  goods,  and  requiring  the  master  or  any  one  having  charge  of 
them  to  deliver  them  to  the  vendor.     Naylor  v.  Dennie,  8  Pick.  198. 

t  On  the  other  hand,  formerly,  actual,  corporal  touch  by  the  vendor  was  held  requisite 
to  a  stoppage  in  transitu.  But  the  modern  doctrine  is,  that,  after  notice  to  the  carrier 
of  goods  not  to  deliver  them,  he  is  liable  in  trover  if  he  does  deliver  them.  Such  notice 
may  re-vest  in  the  vendor  the  jjroperty  which  was  before  in  the  vendee.  Before  no- 
tice, the  vendee  may  maintain  trover  against  the  carrier  ;  after  notice,  the  vendor. 
A  claim  for,  and  attempt  to  stop  the  goods,  is  all  that  the  law  requires.  Litt  v.  Cow- 
ley, 7  Taun.  169,  170.  2  B.  &  P.  462.  Newhall  v.  Vargas,  1  Shepl.  93.  Where 
the  captain  of  a  ship  receipts  for  goods,  he  should  not  sign  a  bill  of  lading,  till  the  re- 
ceipt is  given  up.  If  the  receipt  is  in  the  hands  of  the  vendor,  who  after  the  failure  of 
the  vendee  demands  the  goods,  and  the  captain  refuses  to  give  them  up,  on  the  ground 
that  he  has  signed  a  bill  of  lading  to  the  vendee,  this  is  a  conversion,  though  the  ven- 
dor did  not  tender  the  freight  nor  pay  for  the  trouble  of  loading.  So,  though  one  of 
the  vendors  said  to  one  of  the  vendees,  after  the  failure,  that  he  was  sorry  for  it,  but 
would  do  as  other  creditors  did  ;  if  this  conversation  was  unknown  to  the  captain. 
But  if  the  captain  had  said — "the  goods  are  now  on  board,  and  I  must  take  them  to 
their  destination,"  this  would  be  no  conversion.    Thompson  v.  Trail,  2  C.  &  P.  334, 


Chap.    VIII.]  STOPPAGE    IN    TRANSITU.  191 

merely  to   a  person   acting  as  a   carrier  or  mean  of  convey- 
ance.(l) 

9.  Ld.  Kenyon  remarks — ''  I  once  said  that  a  corporal  touch 
was  necessary  to  constitute  complete  delivery.  I  wish  the  ex- 
pression had  not  been  used.  It  says  too  much."  Any  act  of 
ownership  is  all  that  is  necessary  ;  such  as  payment  for  a  ware- 
house. Upon  the  same  principle,  where  the  purchaser  of  wine 
lived  in  Norwich,  and  the  wine  was  sent  from  London  to  Yar- 
mouth, and  there  received  by  the  vendee's  agent,  and  the  ven- 
dee went  there,  tasted  and  took  a  sample  of  the  wine  ;  held, 
under  these  circumstances  the  vendor  might  sue  for  the  price, 
and  his  right  of  stopping  was  at  an  end.  So  a  delivery  to  a 
commission  merchant,  by  placing  the  goods  to  the  vendee's  ac- 
count, is  sufficient.  But  not  a  mere  claim  of  the  goods  by  the 
vendee (2) 

10.  Where  a  vendee  is  on  the  spot  personally  to  select  the 
goods,  and  has  them  laid  aside,  boxed  and  directed;  it  seems, 
the  vendor  can  have  no  right  to  stop  them  on  their  way  to  his 
place  of  residence. (3) 

11.  Where  goods  are  delivered  to  the  purchaser  at  a  wharf 
and  he  ships  them  there,  the  transitus  is  at  an  end,  and  they 
cannot  be  stopped. (4) 

12.  The  delivery  by  a  carrier  of  a  part  of  goods  sent  by  ven- 
dor to  vendee,  is  prima  facie  a  delivery  of  the  whole,  and  puts 
an  end  to  the  right  of  stoppage  in  transitu. (5) 

13.  But  the  vendor  of  goods  has  a  general  lien  for  the  price 
while  they  remain  in  his  possession,  though  there  have  been  a 
part-delivery,  if  the  right  of  stoppage  in  transitu  is  not  lost. (6) 

14.  So  where  goods  remain  in  the  warehouse  of  the  vendor, 
rent-free,  and  he  gives  the  vendee  a  delivery-order  upon  which  a 
portion  of  the  goods  have  been  taken  ;  the  vendor  still  retains 
the  right  of  stoppage  in  transitu.{7) 

(1)  Rowe  V.  Pickford,  1  Moore,  528. 

(2)  Wright  V.  Lawes,4  Esp.  85.     lb.  82. 

(3)  Per  Tracey,  Sen.;  People  v.  Haynes,  14  Wend.  565.' 

(4)  Noble  V.  Adams,  7Taun.  59. 

(5)  Belts  V.  Gibbins,  4  Nev.  &  M.  64.     2  Ad.  &  El.  57. 

(6)  Hanson  v.  Meyer,  6  E.  614.     2  Smilh,  670. 

(7)  Townley  v.  Crump,  5  Nev.  &  M.  606. 


192  STOPPAGE    IN    THANSITU.  [Chap.    VIII. 

15.  Goods  may  be  stopped  in  transitu,  though  carried  in  a 
ship  named  by  the  vendee.  (1)* 

16.  Goods  were  sold  on  credit  at  a  foreign  port,  and  shipped 
in  a  vessel  of  the  vendee,  consigned  to  him,  to  be  delivered  at 
his  port  of  residence.  The  vendee  having  become  insolvent, 
before  payment,  and  before  obtaining  actual  possession  ;  held, 
the  vendor  might  exercise  the  right  of  stoppage  in  transitu. 
Nor  does  it  make  any  difference,  that  the  vendor  bought  the 
goods  on  credit  for  xhe  vendee,  and  took  bills  drawn  by  the  mas- 
ter of  the  vessel  upon  the  vendee  ;  or  that  he  charged  a  com- 
mission, or  received  part  payment.(2) 

17.  But  where  goods  are  sold,  to  be  paid  for  on  delivery,  and 
are  put  on  board  a  ship  appointed  by  the  vendee,  not  for  the 
purpose  of  being  carried  to  him  or  delivered  for  his  use  and  at 
a  place  of  his  appointment,  but  to  be  shipped  by  the  vessel  in 
his  name  and  from  his  place  of  abode  and  business  to  a  third 
person  ;  the  vendor  has  no  right  of  stoppage  after  the  goods  are 
embarked. (3) 

18.  A,  in  England,  chartered  a  vessel  for  a  voyage  to  Rus- 
sia, to  bring  goods  purchased  from  B  ;  the  captain  contracting 
to  go  to  Russia  and  bring  home  a  cargo,  and  A  agreeing  that  it 
should  be  equal  to  the  tonnage  of  the  ship.  B  shipped  the  goods 
on  account  and  at  the  risk  of  A,  and  sent  him  invoices  and  bills 
of  lading.  A  having  become  bankrupt,  the  agent  of  B  demand- 
ed the  goods  of  the  captain  before  unlading,  but  he  delivered 
them  to  the  assignees  of  A.  B  brings  trover  against  the  assign- 
ees. Held,  there  was  the  same  right  of  stopping  the  goods  on 
board  the  ship  before  actual  delivery,  as  if  they  had   been  sent 

(1)  Thompson  v.  Trail,  2  Car.  &  P.  334. j 

(2)  Newhall  v.  Vargas,  1  Shepl.;.93. 

(3)  Rowley  v.  Bigelow,  12  Pick.  307. 


*  A  fortiori,  where  |they  are  shipped  ai  the  risk  of  the  shipper.  This  point  inci- 
dentally arose  in  an  |admiralty  case,  as  follows.  A,  an  American  citizen,  made  claim 
to  certain  goods  captured  in  the  ship  Frances.  The  goods  were  shipped  by  a  British 
house,  consigned  to  A, but  at  the  risk  of  the  shippers;  and  captured  by  an  American 
privateer.  A  resisted  the  title  of  the  privateer,  on  the  ground  that  the  property  vest- 
ed in  him  upon  delivery  to  the  master,  he  having  made  advances  upon  it.  Held,  A's 
claim  was  not  valid.    The  Frances,  8  Cranch,  418.  9.  183. 


Chap.    VIII.]  STOPPAGE    IN    TRANSITU.  193 

in  a  general  ship  ;  and  that  the  rights  of  the  parties  were  the 
same,  as  if  B  had  made  a  similar  contract  in  Russia  for  forward- 
ing the  goods,  hy  A's  directions  ;  in  which  case  these  facts  would 
not  have  constituted  a  delivery.  It  was  remarked  by  the  Court, 
that  where  the  goods  in  question  make  up  only  one  half  the 
freight,  the  right  of  stoppage  under  such  circumstances  is  un- 
questionable ;  and  the  fact  that  they  constitute  the  whole  freight 
does  not  vary  the  principle. (I) 

19.  But  in  another  case,  A  hired  a  ship  for  three  years,  at  so 
much  a  month,  he  finding  stock  and  provisions  and  paying  the 
master,  and  having  the  whole  control  and  disposal  of  the  vessel. 
The  ship  had  been  one  voyage  to  Alexandria,  and  the  goods 
were  put  on  board  for  another  voyage  to  the  place — not  to  be 
conveyed  from  B,  the  vendor,  to  A,  but  that  they  might  be  sent 
by  A  upon  an  adventure,  for  which  he  had  bought  them.  Held, 
there  was  a  delivery,  and  the  right  of  stoppage  was  at  an  end. (2) 

20.  A,  residing  at  London,  in  the  prospect  of  insolvency,  pro- 
cured goods  from  B  at  Glasgow,  and  paid  for  them  by  a  bill 
drawn  upon  a  London  house  which  he  knew  to  be  insolvent. 
The  goods  were  shipped  at  Leilh,  (the  invoice  and  receipt  from 
the  ship-owners  being  made  out  to  A)  and  were  delivered  to  C, 
a  wharfinger  in  London,  who  afterwards  received  notice  to  hold 
them  for  B.  A,  having  become  bankrupt,  brought  trover  against 
C  for  the  benefit  of  his  assignees.  Held,  the  receipt,  made  out 
to  A,  was  a  delivery  of  the  goods  to  him,  and  terminated  B's 
right  of  stopping  in  transitu  ;  and  that  the  evidence  of  fraud  on 
the  part  of  A  was  not  strong  enough  to  avoid  the  contract.(3) 

21.  A,  the  general  agent,  in  London,  of  B  and  Co.  of  Paris, 
with  power  to  export  for  them  to  such  markets  as  he  should 
think  fit,  purchased  goods  in  the  name  of  B  and  Co.,  from  C  at 
Manchester,  and  directed  them  to  be  sent  to  D,  a  packer,  at 
London.  The  goods  having  arrived,  A  had  some  of  them  un- 
packed and  sent  away,  and  the  rest  re-packed.     Upon  the-failure 

(1)  Boghtlingk  v.  Inglis,  3  E.  381. 

(2)  Fowler  v.  Rymor,  cited  3  E.  396. 

(3)  Noble  V.  Adams,  2  Marsh.  366.    7  Taun.  59 

25 


194  STOPPAGE    IN    TRANSITU.  [Chap.  VIII. 

of  B  and  Co.,  held  C  could  not  stop  the  goods  in  D'a  hands,  the 
transitus  being  at  an  end.(l) 

22.  A,  the  plaintiff,  consigned  goods  to  B,  at  London,  which 
were  left  at  an  inn  in  that  city.  Upon  B's  bankruptcy,  his  as- 
signee, one  of  the  defendants,  went  to  the  inn  and  put  his  mark 
upon  the  goods,  but  did  not  remove  them,  they  having  been  pre- 
viously attached  in  a  suit  against  B.  Upon  hearing  of  B's  bank- 
ruptcy, A  countermanded  the  goods.  Held,  A  could  not  main- 
tain trover,  the  transitus  being  at  an  end,  when  the  mark  was 
put  upon  the  property  ;  and  the  marking  by  the  defendant  having 
the  same  effect  as  if  done  by  B  himself  (2) 

23.  The  following  general  principles  have  been  laid  down,  as 
to  the  effect  of  constructive  delivery  upon  the  right  of  stoppage 
in  transitu. 

24.  Actual  delivery  puts  an.  end  to  the  right  of  stoppage  in 
transitu.  Constructive  delivery  is  a  delivery  for  certain  pur- 
poses only.  Being  a  fictioii,  it  is  so  construed  as  to  work  equity  ; 
and  is  held  so  far  a  delivery  as  to  make  the  carrier  responsible 
to  the  vendee,  but  not  to  terminate  the  transitus  of  the  goods  in 
case  of  bankruptcy.  (3) 

25.  The  general  rule  is  not  (it  seems)  that  goods  may  be  stop- 
ped after  a  merely  constructive  delivery,  and  that  nothing  but 
actual  delivery  vests  a  title  indefeasibly  in  the  vendee;  but  that 
the  transitus  ends  by  delivery,  actual  or  constructive,  and  the 
exception  is  only  where  a  constructive  delivery  is  made  for  the 
purpose  of  transport.(4) 

26.  In  the  case  of  Stubbs  v.  Lund, (5)  Parsons,  Ch.  J.,  puts 
the  right  of  stoppage  in  transitu  upon  the  ground  of  the  desti- 
nation of  the  goods,  or  final  termination  of  the  voyage.  But  in 
Bolin  v.  Huffnagle,(6)  Rogers,  J.,  calls  this  "  a  subtle  distinc- 
tion." 

27.  It  seems,  the  right  of  stoppage  in  transitu  is  paramount 
to  any  lien  against  the  vendee.     Thus  it   may  be  exercised   to 

(1)  Leeds  V.  Wright,  3  Bos.  di  P.  320. 

(2)  Ellis  V.  Hunt,  3  T.  R.  464. 

(3)  Oppenhem  v.  Russell,  3  B.  &  P.  50. 

(4)  Bolin  V.  Huffnagle,  1  Hawle,  19.     Brown  on  Sales,  506. 

(5)  7  Mass.  453. 

(6)  1  Rawle,  9. 


Cliap.    VIII.]  STOPPAGE    IN    TRANSITU.  195 

defeat  an  attachment  or  execution  served  upon  the  goods  by  a 
creditor  of  the  vendee.  An  attachment  operates  only  upon  the 
interest  of  the  debtor,  but  does  not  defeat  the  paramount  right 
of  a  stranger.  If  it  did,  the  right  of  stoppage  in  transitu  would 
be  of  little  practical  value,  because  an  attachment  of  his  proper- 
ty is  often  the  first  notice  of  a  vendee's  insolvency.  The  ven- 
dor's power  of  intercepting  the  goods  is  the  elder  and  preferable 
lien,  and  not  superseded  by  the  attachment,  any  more  than  it 
would  have  been  by  the  general  right  of  a  common  carrier  to 
retain  all  his  customer's  goods  for  his  general  balance.  (1) 

28.  Where  goods  are  not  deliverable  without  a  further  act  of 
the  vendor,  the  right  of  stoppage  continues.  Thus,  where  the 
property  sold  is  part  of  an  entire  mass — as,  for  instance,  part  of 
the  liquid  in  a  vessel ; — the  right  of  stoppage  continues,  it  seems, 
till  a  separation  of  the  quantity  sold.  So  where  the  goods  re- 
main to  be  sorted,  numbered  and  weighed,  the  right  continues, 
notwithstanding  a  delivery  of  part  of  them. (2) 

29.  The  plaintiff  went  to  the  defendant's  shop  to  purchase  ar- 
ticles of  plate.  The  price  was  agreed  upon,  but  the  goods  were 
not  to  be  delivered  then,  but  were  to  remain  to  be  engraved  at 
the  defendant's  expense.  They  were  accordingly  delivered  to 
an  engraver,  who  was  directed  by  both  parties  to  return  them 
to  the  defendant.  The  price  was  paid,  at  the  time  of  the  agree- 
ment, in  notes  of  A,  a  banker,  whose  house  at  that  time  was 
closed,  and  in  consequence  of  A's  bankruptcy  was  never  re- 
opened. The  notes  were  not  paid.  The  plaintiff  brings  trover 
for  the  goods.  Held,  while  the  goods  remained  to  be  engraved 
at  the  defendant's  expense,  they  were  only  in  transitu,  and  there 
was  no  complete  delivery  to  the  plaintiff;  and  that  as  the  de- 
fendant had  not  agreed  to  take  the  notes  as  payment,  and  run 
the  risk  of  their  being  paid,  upon  a  failure  of  consideration,  the 
plaintiff  ceased  to  have  a  claim  to  the  goods,  and  this  action 
would  not  lie.     Under  the  circumstances,  it  seems,  the  defend- 

(1)  Morlcy  V.  Hay,  3  'M.  &  R.  396.  Buckley  v.  Fuiniss,  15  WcnJ.  137.  Sraiili 
V.  Goss,  1    Camp.    282.     Naylor  v.  Deiinic,  8  Pick.  198. 

(2)  Austen  v.  Cianeiii,  4  Taun.  464.  13  E.  525.  Haiuon  v,  Meyer,  6  E.  614.  11. 
210. 


196  sTOPPA'iE  IN  TRANSITU.  [Chap.  VIII. 

ant  could  not  have  recovered  for  goods  sold  and  delivered,  though 
perhaps  he  might  as  for  goods  hargained  and  sold. (I) 

30.  Sale  often  tons  of  flax,  at  so  much  per  ton,  out  of  a  larg- 
er quantity,  packed  in  mats  of  uncertain  weight.  The  price 
was  to  be  paid  by  an  acceptance  at  three  months.  A  note'was 
given  for  delivery  on  a  certain  duy,  after  which  the  rent  of  the 
building  where  the  flax  lay  was  charged  to  the  vendee.  The 
order  for  delivery  was  entered  in  the  wharfinger's  books.  Al- 
lowance for  tare  and  draft  was  to  be  made  by  the  weight.  Held, 
the  vendor  might  rescind  the  sale  upon  bankruptcy  of  the  ven- 
dee, and  maintain  trover  against  the  warehouseman.  The 
weighing  was  to  be  the  act  of  the  vendor  as  well  as  the  vendee. 
The  former  must  pay  for  and  superintend  it,  and  it  could  not 
be  done  without  giving  him  notice.  He  also  had  the  right  to 
make  a  selection.  The  mats  being  of  unequal  quantities,  the 
fraction  of  one  might  be  requisite  to  make  up  the  weight 
sold. (2) 

31.  A  sale-note  for  fifty  tons  of  oil  was  delivered  by  the  bro- 
ker of  the  vendor  to  the  vendee,  payable  by  a  future  acceptance. 
The  vendee  also  received  an  order  upon  the  wharfinger  to  de- 
liver fifty  tons  out  of  a  quantity  of  ninety.  A  usage  was  shown 
in  case  of  the  sale  of  oil,  to  have  the  cooper  of  the  vendor  search 
the  cask,  and  the  mutual  broker  of  the  parties  ascertain  the 
quantity  of  soot,  dirt  and  water  in  each,  for  which  allowance 
was  made.  The  casks  were  then  to  be  filled  by  the  vendor's 
cooper  at  his  expense.  All  this  took  place  before  delivery. 
Held,  that  in  the  present  case,  the  sale  was  not  complete,  but 
on  the  vendee's  becoming  bankrupt,  the  vendor  might  counter- 
mand it. (3) 

32.  But  where  the  vendee  re-sells  the  property,  before  sepa- 
ration of  the  particular  part  sold  by  the  vendor,  the  former  has 
not  the  right  of  stoppage  m  transitu,  upon  the  bankruptcy  of  the 
second  purchaser. 

33.  A,  having  forty  tons  of  oil  in  the  same  cistern,  sold  ten 

(1)  Owenson  V.Morse,  7  T.  R.  64. 

(2)  Busk  V.  Davis,  2  M.  &.  6.  397.    5  Tauu.  622.  n. 

(3)  Wallace  v.  Breeds,  13  E.  522. 


Chap.    VIII.]  STOPPAGE    IN    TRANSITU'.  197 

tons  to  B,  and  received  payment.  B  sold  to  C,  taking  his  ac- 
ceptance at  four  months,  and  giving  him  an  order  for  delivery 
upon  A,  who  accepted  it  in  writing.  The  ten  tons  were  never 
delivered,  but  still  continued  mixed  with  the  rest  in  the  cistern. 
Before  his  acceptance  became  due,  C  became  bankrupt.  Held, 
there  was  a  complete  delivery  in  law  by  B  to  C,  B  never  hav- 
ing himself  had  actual  possession,  and  nothing  remaining  to  be 
done  between  him  and  C,  though,  as  between  A  and  C,  the  oil 
was  yet  to  be  measured.  A  was  the  common  bailee  of  both  the 
other  parties.  Hence  B  could  not  countermand  the  sale,  nor 
stop  the  property  as  in  transitii.{l) 

34.  It  seems,  there  can  be  no  stoppage  in  transitu,  where  the 
vendor  knew  that  the  vendee  was  insolvent  at  the  time  of  sale. 
But  where  the  sale  took  place  in  1833,  the  vendee  had  failed  in 
New  York  in  1S29,  the  vendor  knew  this  fact,  but  not  that  he 
had  remained  insolvent  ever  since;  and  the  vendee  afterwards 
transacted  business  in  the  country,  and  represented  that  he  was 
largely  interested  in  real  estate  ;  and  the  vendor  had  previously 
sold  him  goods  and  been  promptly  paid,  and  was  ignorant  of  his 
being  much  in  debt,  and  of  his  securities  having  been  protest- 
ed ;  held,  no  sufficient  notice  of  insolvency  to  prevent  the  exer^ 
cise  of  the  right  of  stoppage.  (2) 

35.  Nor  can  the  vendor  exercise  the  right  of  stoppage  in  tran- 
situ, where,  by  some  act  subsequent  to  the  original  contract,  he 
seems  to  have  waived  such  right. 

36.  A  sold  to  B  a  butt  of  wine,  but  did  not  deliver  it.  B  af- 
terwards made  a  composition  with  his  creditors,  and  the  price 
of  the  wine  was  by  A's  consent  included  in  such  composition,  A 
having  also  another  claim  against  B.  Before  payment  of  the 
whole  composition,  B  demanded  the  wine,  and,  upon  A's  refusal 
to  deliver  it,  brought  trover  against  him.  Held,  A's  undertake 
ing  bound  him  to  deliver  the  wine,  and  the  doctrine  of  stoppage 
in  transitu  did  not  apply.  It  was  a  sufficient  consideration  for 
A's  promise,  that  he  thereby  obtained  security   for   his  whole 

(1)  Whitehouse  v.  Frost,  12  E.  614- 

(2)  Buckley  v.  Furniss,  15  Weiid.  137. 


198  STOPPAGE  IN  TUANsiTu.  [Chap.  VIII. 

debt.     The  right  of  stoppage,  instead  of  being  insisted  on,  was 
given  up.(l ) 

37.  It  is  the  general  rule,  that  where  goods  are  sold  to  be  sent 
to  a  particular  destination  named  by  the  vendee,  the  right  of 
the  vendor  to  stop  them  continues  until  they  arrive  at  that  place 
of  destination. (2) 

38.  If  a  man  be  in  the  habit  of  using  the  warehouse  of  a 
wharfinger  as  his  own,  and  make  that  the  depository  of  his 
goods,  and  dispose  of  them  there,  the  transittis  will  be  at  an  end 
when  the  goods  arrive  at  such  warehouse.(3) 

39.  Goods  may  be  stopped  in  transitu,  if  deposited  at  the 
king's  warehouse  for  duties,  though  they  have  been  claimed  by 
the  vendee.  (4) 

40.  Trover  by  assignees  for  certain  goods  sent  to  A,  a  bank- 
rupt, in  London,  from  Manchester.  The  goods  arrived  in  the 
office  of  the  defendants,  who  were  carriers,  before  A's  bank- 
ruptcy, and  remained  there  till  they  were  removed  by  A's  agent, 
to  be  shipped  for  the  Continent,  according  to  A's  general  prac- 
tice in  relation  to  goods  thus  consigned.  A  had  no  warehouse 
of  his  own.  Held,  the  transitus  was  at  an  end  on  the  arrival 
of  the  goods  at  the  wagon-office,  and  that  the  plaintifTs  were 
entitled  to  them  notwithstanding  a  claim  by  the  sellers  to  stop 
them.(.5) 

41.  A  shipped  goods  from  Newcastle  for  London,  to  the  or- 
der of  B.  Finding  that  B  was  insolvent,  A  applied  at  the  de- 
fendant's wharf  in  London,  where  the  goods  had  in  the  mean 
time  arrived,  and  where  goods  shipped  for  B  were  usually  land- 
ed and  kept  till  sent  for  by  hnn,  tendering  the  freight  and 
charges  paid  for  the  goods,  and  requiring  delivery  of  them, 
which  was  refused,  unless  upon  payment  of  a  general  balance 
due  from  B  to  the  defendant  for  wharfage.  Held,  it  seems,  that 
the  transitus  was  at  an  end  upon  the  arrival  of  the  goods  at  the 

(1)  Nichols  V.  Hart,  5  C.  &  P,   179. 

(2)  Per  Bayloy,  J.,  Coales  v.  Railtuii,  6  B.  &.  C.  425.     Stanton  v.  Eager,  16  Pick. 
474. 

(3)  Tucker  v.  Humphrey,  4  Bing.  521.  (3  Bos,  &,  P.  127.  lb.  469.  6  B.  &  C. 
109.^ 

(4)  2  Es|).  603. 

lb)  Roue  V.  Picklbril.  1  Moore,  526. 


Chap.     VIII.]  STOPPAGE    IN    TRANSITU.  199 

defendant's  warehouse,  this  being  the  usual  place,  where   B's 
goods  were  deposited  and  disposed  of.  (1) 

42.  A  purchased  for  B,  with  his  (A's)  own  money,  a  quantity 
of  flour  at  S,  which  was  sent  to  London  by  water,  reached  the 
wharf  April  12,  and  was  landed  April  22d,  The  invoice  was 
forwarded  to  B,  and  a  manifest  of  the  flour  to  a  wharfinger  in 
London,  who  was  in  the  habit  of  delivering  goods  to  the  con* 
signee  when  called  for,  and  in  the  mean  time  keeping  them  in 
his  vessel.  If  not  called  for,  his  practice  was,  upon  the  return 
of  the  vessel,  to  store  them  in  his  warehouse,  to  the  order  of  the 
consignor.  If  the  goods  were  to  be  delivered  to  order,  he  de- 
livered them  either  upon  a  bill  of  lading  or  an  invoice  from  the 
shipper.  B  was  in  the  habit  of  having  flour  consigned  to  him 
at  the  wharf,  and  of  selling  it  either  on  board  or  as  it  lay  in  the 
wharfinger's  warehouse.  B  having  become  bankrupt ;  on  April 
17,  before  any  application  by  him,  A  by  an  order  claimed  the 
flour.     Held,  he  was.  entitled  to  stop  it  as  in  transitu. (2) 

43.  March  16,  goods  were  sent,  upon  a  previous  order,  from 
Manchester,  directed  to  A,  at  the  B.  &.  M.  inn,  London.  A 
having  left  no  directions  as  to  the  goods  at  this  inn,  March  23, 
they  were  sent  to  the  house  of  B,  the  defendant,  as  the  packer 
of  A,  to  whom  A  had  given  a  general  order  that  all  his  goods 
should  be  sent,  A  having  no  warehouse  of  his  own.  March 
11,  A  committed  an  act  of  bankruptcy.  Upon  their  arrival, 
the  goods  were  booked  to  A's  account,  and  were  unpacked  by 
B,  who  was  ignorant  of  the  bankruptcy.  March  31,  the  con- 
signors, and  on  the  next  day  the  assignees  of  A,  the  plaintiflfs, 
claimed  the  goods.  Held,  there  being  no  other  place  of  deliv- 
ery in  this  case  than  B's  warehouse,  the  goods,  when  arrived 
there,  had  come  to  their  last  destination,  and  consequently  were 
no  longer  liable  to  the  right  of  stoppage  in  transitu  ;  and  that 
the  plaintiffs  should  recover  the  value  of  them  in  trover.{^) 

44.  The  question  often  arises,  whether  the  arrival  of  goods 
purchased  at  an  intermediate  place,  between  the  two  points  of 


(1)  Richardson  v.  Goss,  3  B.  &.  P.  119. 

(2)  Tucker  v.  Humphrey,  4  Bing.  516. 

(3)  Scott  V,  Pettit,  3  Bos.  &  P.  469.     (See  also  Leeds  v.  Wright,  lb.  320. ) 


200  STOPPAGE    IN    TRANSITU.  •        [Chap.    VIII. 

departure  and  of  destination,  puts  an  end  to  the   right  of  s/op- 
page  in  transitu. 

45.  A,  residing  at  Guernsey,  employed  B  as  his  agent  at 
Southampton,  to  ship  all  goods  which  should  arrive  at  the  latter 
place,  directed  to  A.  B  paid  the  carriage  and  wharfage,  and 
selected  the  ship  by  which  certain  goods,  purchased  of  C,  were 
forwarded.  A  having  become  insolvent,  both  A  and  C  were  de- 
sirous that  the  goods  should  be  stopped  ;  but  B  claimed  to  re- 
tain them  by  virtue  of  a  lien  for  a  debt  due  from  A.  The  jury 
found  that  the  re-loading  after  the  goods  were  shipped  for 
Guernsey  was  for  the  use  of  the  owner.  Held,  the  transitus 
was  not  terminated  at  Southampton,  but  continued  after  the 
embarking  for  Guernsey ;  and  that  B  could  not  retain  the 
goods.(l) 

46.  A  ordered  a  quantity  of  goods  from  B,  who  lived  at  a 
distance  from  him,  to  be  forwarded  to  an  intermediate  place. 
The  goods  were  accordingly  sent,  and,  upon  arriving  at  such 
place,  were  delivered  to  a  carrier  employed  by  A,  and  a  part  of 
them  received  at  his  residence.  Before  the  remainder  reached 
A's  residence,  B  resumed  possession  of  them  on  the  ground  of 
A's  insolvency.  Held,  the  transitus  was  not  ended,  because, 
although  the  whole  quantity  was  ordered  and  forwarded  at  once, 
yet  it  became  separated  on  the  journey,  and  delivery  of  part  did 
not  pass  an  absolute  title  to  the  rest.  (2) 

47.  A,  living  in  London,  on  March  3Ist  sent  orders  to  B,  a 
manufacturer  at  Manchester,  for  certain  goods,  "  to  be  sent  to  C 
at  Hull,  to  be  shipped  for  Hamburgh  as  usual,"  which  accord- 
ingly came  to  C's  possession,  A  was  in  the  habit  of  ordering 
goods  from  B,  to  be  sent  to  C  at  Hull,  and  thence  forwarded  to 
A's  correspondent  at  Hamburgh.  A  became  insolvent  in  July, 
and  on  Sept.  26th  committed  an  act  of  bankruptcy.  Held,  as 
the  goods,  upon  reaching  Hull,  had  so  far  gotten  to  the  end  of 
their  journey,  that  they  waited  for  new  orders  from  the  purchas- 
er to  put  them  again  in  motion,  and  communicate  to  them  another 
substantive  destination,  without  which  orders  they  would  con- 

(1)  Nicholls  V.  Lo  Feuvre,  2  Ring.  N.  R.  81. 

(2)  Buckley  v.  Fiirniss,  17  Went).  604.  15.  137. 


Chap.    VIII.]  STOPPAGE    IN    TRANSITL".  '201 

tiflue  stationary  ;  as  between  buyer  and  seller  the  right  of  stop- 
ping in  transitu  was  at  an  end,  but  that  A  might  agree  bona 
fide  and  not  in  the  way  of  voluntary  and  undue  preference  to 
give  up  the  goods  to  C  in  the  latter  part  of  July ;  and  that  as 
evidence  of  the  fairness  of  the  transaction,  the  facts  of  A's  hav- 
ing called  a  meeting  of  his  creditors,  taken  legal  advice,  and 
been  thereby  encouraged  to  give  up  the  goods,  were  proper  for 
the  jury,  though  they  were  shortly  followed  by  bankruptcy — B 
at  the  time  they  were  given  up  having  possession  of  them  as 
still  in  transitu. {\) 

48.  The  question  of  stoppage  often  arises,  where  possession 
is  taken  by  the  vendee  before  the  place  of  destination  is  reached, 

49.  Where  a  man  orders  goods  to  be  delivered  at  a  particu- 
lar place,  it  has  been  held,  that  the  transitus  continues  until 
they  are   delivered   to  the  consignee  at   that  place,  or   till   the 

journey's  end;  but  that  must  be  understood  of  a  delivery  in  the 
ordinary  course  of  business  ;  for  if  the  consignee,  before  the 
goods  reach  their  ultimate  destination,  postpones  the  delivery,  or 
is  allowed  to  do  any  act  of  ownership,  or  any  thing  which  is 
equivalent  to  taking  actual  possession  of  them,  the  transitus 
is  at  an  end.  Thus,  if  the  vendee  meet  the  goods  on  the  road, 
and  take  possession  of  them,  this  is  constructively  the  end  of 
the  journey,  and  the  right  is  at  an  end. (2) 

50.  But  other  cases  hold,  that  although  the  vendee  has  come 
into  possession  of  the  goods,  if  the  proposed  voyage  is  not  com- 
pleted, the  vendor  has  still  the  right  of  stoppage  in  transitu.{S) 

51.  Before  arrival  of  the  ship,  containing  goods  purchased, 
at  the  port  of  destination,  the  vendee  became  insolvent  ;  and  as 
soon  as  they  arrived,  his  assignees  took  possession  of  them. 
The  ship  was  afterwards  ordered  out  on  quarantine.  Held, 
during  quarantine,  the  vendor  might  stop  the  goods  as  in  tran- 
situ. A  consignee  cannot  claim  the  goods  by  virtue  oChhpos- 
session,  unless  such  possession  were  obtained  on  completion  of 
the  voyage.     He  cannot  be  allowed  to  go  out  to  sea,  to  meet  the 


(1)  Diion  V.  Baldwin,  5  E.  175. 

(2)  Per  Bayley,  J.,  Foster  v.  Frampton,  6  B.  &  C.  108.     15  Wend,  137.     Per  Ld, 
Alvanley,  2  B.  &  P.  461.    Jordan  v.  James,  5  Ohio.  98, 

(3)  1  Esp.  242. 

26 


202  STOPPAGE    IN    TRANSITU.  [Chap.    VIII. 

ship ;  for  upon   the  same  principle  he  might   meet   her  when 
leaving  her  port  of  deparlure.(l)* 

52.  The  same  question  often  arises,  where  the  goods  have 
been  put  into  the  hands  of  a  carrier.  Upon  this  point,  the  law 
has  been  stated  as  follows. 

53.  Actual  delivery  into  the  possession  of  a  consignee  or 
vendee  vests  in  him  the  absolute  property.  So  also,  delivery  to 
a  servant  or  correspondent  authorized  to  receive  the  goods, 
which  is  equivalent  to  a  delivery  to  the  vendee  himself.  The 
question  is  in  all  cases,  whether  the  receiver  is  an  agent,  so  that 
delivery  to  him  is  a  full,  effectual  and  final  delivery  to  the  prin- 
cipal, as  distinguished  from  delivery  to  one  who  is  virtually  a 
carrier  or  mean  of  conveyance  to  or  on  account  of  the  princi- 
pal, in  the  mere  course  of  transit,  in  which  case  the  right  of 
stoppage  continues  till  actual  possession  by  the  vendee  or  the 
end  of  the  journey. (2) 

54.  The  question,  whether  the  vendor  having  got  possession 
of  the  goods  can  keep  them,  is  very  different  from  that,  whether 
he  can  recover  them  from  the  middle  man.  It  seems,  an  action 
does  not  in  all  caseslie  against  a  carrier  who  after  notice  delivers 
to  the  vendee  ;  more  especially  where  the  goods  are  sent  by  wa- 
ter, and  the  master  signs  a  bill  of  lading  to  deliver  to  the  vendee. 
But  it  is  otherwise  where  notice  not  to  deliver  is  given  by  the 
vendor  to  a  wharfinger,  and  no  demand  made  by  the  vendee, 
and  the  wharfinger  admits  himself  a  stakeholder. (3;  t 

(1)  Hoist  V.  Povvnal,  1  Esp.  240. 

(2)  Bolin  V.  Huffnagle,  1  Rawle,  9.     Buckley  v.  Furniss,  13  Wend.  137 

(3)  Mills  V.  Ball,  2  B.  &  P.  461,  2. 

*  It  has  been  suggested,  that  in  relation  to  the  point  above  considered,  there  is  a 
distinction  between  carriage  by  sea  and  carriage  by  land.  In  the  former  case,  liie 
master,  by  signing  the  bill  of  lading,  agrees  with  the  consignor  to  deliver  the  goods  at 
the  destined  port ;  but  in  the  latter  there  is  no  such  agreement.  Consequently,  in 
the  former  case,  the  consignee  cannot  demand  ihem  before  arrival  at  the  port  named 
The  soundness  of  this  distinction,  however,  has  been  lately  questioned.  2  Bos.  &  P. 
461  n.     Abbott  on  Ship.  374.    2  M.  &  W.  633 . 

t  The  doctrine  of  stopping  goods  in  transitu  is  bottomed  on  the  case  of  Snce  v.. 
Prescot.(a)     On  this  all  the  other  cases  are  foundcd.(6)    In  that  case  Lord  Hard- 

(a)  1  Atk.  248. 

{h)  Ellis  V.  Hunt,  3  T.  R.  467. 


Chap.    VIII.]  STOPPAGE    IN    TRANSITU.  203 

55.  The  original  delivery  of  goods  to  a  carrier  vests  the  pro- 
perty in  the  vendee,  but  it  is  liable  to  be  defeated  by  his  subse- 
quent insolvency. (J ) 

56.  It  never  has  been  held,  that  goods  while  in  the  hands  of 
a  carrier  or  wharfinger  are  to  be  considered  as  finally  delivered, 
unless  such  party  is  actually  the  agent  of  the  vendee.  And 
those  cases  have  all  turned  on  attempts  to  defeat  a  general  body 
of  creditors. (2) 

57.  The  purchaser  of  certain  hogsheads  of  sugar,  being  no- 
tified by  the  carrier  of  their  arrival,  took  samples  from  them, 
and  for  his  own  convenience  as  he  was  in  the  habit  of  doing, 
desired  the  carrier  to  keep  them  in  his  warehouse  till  further 
orders.  While  they  remained  there,  he  became  bankrupt. 
Held,  they  were  no  longer  in  transitu,  and  the  vendor  could 
not  hold  them  against  the  assignees  of  the  purchaser  ;  that  from 
the  time  of  his  taking  samples  and  agreeing  with  the  carrier  to 

■  keep  the  goods,  the  latter  became  his  warehouseman,  he  ceased 
to  be  a  carrier,  and  became  a  mere  bailee;  and  the  goods  were 
as  much  in  the  purchaser's  possession,  as  if  they  had  been  in 
his  own  warehouse.  (3) 

58.  The  vendor  of  goods  abroad  informs  the  vendee  that  he 
has  chartered  a  ship  on  his  account,  and  forwards  to  him  an 
invoice,  expressing  that  the  goods  are  for  the  vendee's  account 
and  risk,  together  with  a  bill  of  lading,  which  states  that  deliv- 
ery is  to  be  made  to  order,  &c.  "  he  paying  freight  for  said 
goods,  according  to  the  charter-party."  He  also  informs  the 
vendee,  that  he  has  drawn  bills  upon  him  at  three  months  for 
the  value  of  the  cargo.  The  goods  were  delivered  to  the  cap- 
tain of  the  ship,  and  the  vendor's  agent  obtained  possession  of 

(1)  Mills  V.  Ball,  2  B.  &.  p.  463. 

(2)  Bartram  v.  Farebrother,  4  Biiig.  585. 

(3)  Foster  v.  Frampton,  6  B.  &  C.  107. 

wicke  said,  that  if  goods  were  delivered  to  a  carrier  to  be  conveyed-  to  A,  and  while 
the  carrier  was  upon  the  road,  and  before  actual-delivery  to  A  by  the  carrier,  the  con- 
signor hears  that  A  his  consignee  is  likely  to  become  a  bankrupt,  or  is  actually  one, 
and  countermands  the  delivery,  and  gets  them  back  into  his  own  possession  agaim 
trover  will  not  lie  by  the  assignees  of  A;  because  the  goods,  while  they  were  in  Iran.' 
situ  might  be  so  countennandcd. 


204  STOPPAGE    IN    TRANSITU.  [Chap.    VIll. 

them  under  another  bill  of  lading,  and  refused  to  surrender  them 
without  immediate  payment.  This  the  vendee  refused,  but  of- 
fered acceptances  at  three  months.  Held,  the  property  had 
vested  in  the  vendee,  subject  to  a  condition  subsequent  and  to 
the  right  of  stoppage  in  transitu;  and  that  as  the  agent  obtain- 
ed the  goods  wrongfully,  the  vendee  might  have  trover  against 
him,  without  tendering  freight  to  him  or  the  captain.  Particu- 
lar stress  was  laid  on  the  terms  of  the  invoice,  "  at  the  account 
and  risk"  of  the  vendee. (1) 

59.  A,  residing  at  Lisle,  applied  to  the  plaintiff,  a  ribbon- 
weaver,  for  ribbons.  The  defendant  having  recommended  A, 
the  plaintiff  delivered  the  defendant  goods,  to  be  forwarded  to 
Lisle.  These  goods,  with  others  bought  of  C,  were  sent.  May 
12,  to  D,  the  defendant's  correspondent  at  Ostend,  with  direc- 
tions to  send  them  to  the  order  of  A.  Upon  receipt  of  the  goods, 
May  29,  D  wrote  to  A  an  acknowledgment  thereof,  stating  that 
the  goods  awaited  his  directions.  June  12,  A  stopped  payment.  ^ 
August  13,  A  consented  to  C's  taking  back  his  goods.  But 
not  having  fulfilled  some  engagement  with  the  defendant,  and 
being  largely  indebted  to  him,  the  defendant  countermanded 
the  order  to  D,  as  to  delivery,  by  letter  of  May  31,  and  direct- 
ed an  alteration  of  marks,  and  a  delivery  to  his  order,  which 
was  accordingly  made,  and  the  goods  disposed  of  to  satisfy  the 
defendant's  debt.  Held,  the  defendant,  after  regaining  posses- 
sion of  the  goods,  stood,  in  relation  to  them,  as  he  did  origin- 
ally ;  that  they  were  in  his  hands  to  be  conveyed  and  were  con- 
sequently liable  to  stoppage. (2) 

60.  Goods,  forwarded  by  the  vendor  by  a  water-carrier,  were 
deposited  in  the  warehouse  of  the  latter  for  the  accommodation 
of  the  vendee,  to  be  delivered  as  he  should  want  them.  Held, 
the  transiiiis  was  at  an  end,  though  the  carrier  claimed  a  lien 
on  the  goods.  They  had  reached  their  destination,  until  some 
new  order  was  given  respecting  them.  The  office  of  carrier 
had  been  changed  for  that  of  warehouseman  ;  and  for  the  pur- 
pose of  stowing  these  goods,  the  warehouse  was  the  vendee's. (3) 

(1)  Walley  v.  Montgomery,  3  E.  oS5. 

(2)  Stokes  V.  La  Riviere,  3  E.  397. 

(3)  Allan  v.  Grippe; ,  2  Croiii]j.  &  Jer.  21S  « 


Chap.    VIII.]  STOPPAGE    IN    TRANSITU.  205 

61.  A  part  of  certain  goods  sold  were  landed  by  the  carrier 
upon  the  wharf  of  the  vendee.  The  latter  having  become  bank- 
rupt, the  carrier. re-loaded  the  goods,  and  carried  the  whole  to 
his  own  premises.  The  goods  were  sent  in  different  barges,  and 
a  part  unloaded  from  each.  The  vendee  took  no  possession  of 
this  portion,  nor  was  it  weighed,  so  that  the  freight  could  be  as- 
certained. Held,  the  property  must  be  considered  as  in  course 
of  deliver^/,  not  actually  delivered  ;  that  to  put  an  end  to  the 
right  of  stoppage  in  transitu,  there  must  have  been  such  a  de- 
livery as  to  extinguish  the  carrier's  lien  upon  the  whole  proper- 
ty, which  was  not  the  case  here  ;  that  the  carrier  had  a  special 
property  till  the  whole  freight  was  paid  or  tendered,  or  till  by 
some  act  he  assented  to  a  delivery  without  such  payment  or  ten- 
der, and  that  the  vendor  might  recover  of  the  carrier  in  trover. 
It  was  remarked  by  the  Court,  that  the  defendant  attempted, 
as  against  the  assignees  of  the  vendee,  to  deny  that  there  was  a 
delivery,  so  as  to  retain  his  own  lien  ;  and  as  against  the  ven- 
dor, to  set  up  a  delivery,  so  as  to  extinguish  his  right  of  stop- 
page.(l) 

62,  A  ordered  goods  from  B  abroad.  B  shipped  the  goods 
on  account  and  at  the  risk  of  A,  and  took  from  the  captain  bills 
of  lading,  making  the  goods  deliverable  to  his  (B's)  own  order. 
One  of  the  bills,  he  sent,  unindorsed,  with  anjnvoice  to  A,  ad- 
vising him  at  the  same  time  that  he  had  drawn  for  the  amount, 
and  doubted  not  the  bill  would  be  honored,  and  close  the  ac- 
count between  them.  The  other  bill  of  lading  was  sent,  indors- 
ed, to  C,  B's  agent.  The  captain  delivered  the  goods  to  A, 
who  transferred  them  to  D,  on  account  of  a  prior  debt,  and  de- 
livered him  the  bill  of  lading  unindorsed.  C  brings  trover 
against  D  for  the  goods.  Held,  upon  shipment,  the  property 
vested  in  A,  subject  to  the  right  of  stopping  in  transitu ;  and 
the  delivery  by  the  captain  to  A  vested  it  in  him  absolutely,  ■ 
though  the  captain  might  be  liable  to  B.  A  might  have  insur- 
ed the  goods;  or,  if  uninsured  and  lost,  the  loss  must  fall  upon 
him.  Indorsement  of  the  bill  of  lading  to  C,  it  seems,  was  made 
only  to  enable  him  to  take  possession  of  the  goods  in  caseof  A's 
bankruptcy,  not  to  transfer   the  property.     Or  even  if  this  last 

(I)  Ciawghav  V.  Eades,  1  Barn.  &  C.  181, 


20G  STOPPAGE    IN    TRANSITU.  [Chap.    VIII. 

was  the  object,  still   the  delivery  to  A  gave  him   a  paramount 
title  (1)     (See  S.  80.) 

63.  The  light  of  stoppage  in  transitu  cannot  be  impaired  by 
proof  of  an  account  due  from  the  consignee  to  the  carrier  ;  of  a 
usage  for  the  carrier  to  retain  goods  for  a  general  balance  due 
him  ;  and  of  public  notice,  and  special  notice  to  the  consignee, 
of  such  usage.  Even  an  agreement  with  the  consignee  in  favor 
of  such  a  lien  would  make  no  difference  as  to  the  consignor. 
An  assignee  of  the  consignee  must  hold  subject  to  the  right  of 
stoppage  ;  and,  like  such  assignee,  the  carrier  claims  under  the 
consignee.  It  is  true,  that  if  in  consequence  of  any  thing  hap- 
pening to  the  goods  at  their  place  of  deposit,  a  third  person  ac- 
quires a  right  to  them  before  the  property  vests  in  the  vendee, 
the  vendor  cannot  stop  them  without  satisfying  such  right.  But 
he  is  not  bound  to  satisfy  rights  acquired  under  the  vendee,  if 
he  interpose  his  claim  before  the  goods  are  in  a  situation,  which 
gives  the  vendee  a  complete  dominion.  Whether  legal  process 
in  favor  of  a  creditor  of  the  consignee  would  prevail  over  the 
right  of  stopping  in  transitu,  may  be  somewhat  doubtful.  It 
may  be  doubted  whether  this  right  could  be  controlled  even  by 
an  express  agreement  with  the  consignor  for  a  general  lien  ;  such 
lien  being  against  the  policy  of  the  law.  The  case  is  very  dif- 
ferent from  that  ^f  the  indorsement  of  a  bill  of  lading,  whereby 
the  right  of  stoppage  is  divested ;  for  in  this  case  the  vendor  by 
his  own  act  enables  the  vendee  to  gain  a  credit  upon  the  goods. 
Stoppage  in  transitu  is  a  common  law  right.  If  not,  the  action 
of  trover  could  not  be  founded  upon  it.  The  right  arises  from 
the  ancient  power  and  dominion  of  the  consignor  over  his  pro- 
perty, reserved  at  the  time  of  delivery  to  the  carrier.  There  is 
a  privity  of  contract  between  the  consignor  and  the  carrier. 
This  appears  from  the  consideration,  that  if  the  consignee  can- 
not be  found,  or  refuses  to  take  the  goods,  the  carrier  may  de- 
mand payment  from  the  consignor.  Upon  these  grounds,  the 
consignor's  ancient  power  is  paramount  to  any  agreement  be- 
tween the  carrier  and  consignee.  The  carrier  must  suffer  for 
his  own  laches  in  giving  credit  to  his  employer. (2) 

(1)  Co.xe  V.  Harden,  4  E.  211. 

(2)  Oppeahcim  v.  Russoll,  3  B.  &  P.  42. 


Chap.    VIII.]  STOPPAGE    IN    TRANSITU.  207 

04.  If  a  man  living  abroad  or  at  a  distance,  order  goods  to  be 
sent  to  A,  his  packer,  in  order  that  A  may  hand  them  on  to 
him ;  A  is  a  mere  middle  man  with  respect  to  the  right  of  stop- 
ping in  transitu. (l) 

65.  Substantially  the  same  principles  have  been  adopted, 
where  goods  remain  in  the  hands  of  a  ichariingcr,  or  other  de- 
positary, which  have  been  stated  as  applicable  to  carriers. 

C6.  A  purchases  goods  from  B,  to  be  sent  to  C  a  wharfinger, 
and  by  him  forwarded  to  A.  Held,  the  goods  were  m  transitu, 
and  liable  to  be  stopped,  while  in  the  hands  of  C.(2) 

67.  Where  a  wharfinger  at  Exeter  paid  the  freight  and  charg- 
es up  to  that  place,  but  was  not  authorized  to  meddle  with  the 
goods,  being  only  one  of  the  hands,  by  which  they  were  to  be 
forwarded  to  North  Taunton,  their  ultimate  destination  ;  held, 
the  wharfinger  was  merely  a  middle  man,  and  delivery  to  him 
did  not  end  the  right  of  stoppage  in  transitu  in  case  of  bank- 
ruptcy. (3) 

68.  A  ship  having  arrived  from  abroad,  twenty  days  from  ar- 
rival were  allowed  by  law  for  payment  of  the  duties,  after  which 
time  the  goods  were  removed  from  the  ship  to  the  king's  cellars, 
and,  at  the  end  of  three  months,  sold,  and  the  surplus  proceeds 
paid  to  the  owner.  Held,  in  case  of  the  consignee's  insolvency, 
the  agent  of  the  consignor  having  demanded  the  goods  the  day 
before  the  three  months  expired,  and  they  being  afterwards  sold 
for  the  duties ;  the  surplus  proceeds  were  rightfully  paid  over 
to  the  agent,  and  that  the  assignees  of  the  vendee  could  not 
maintain  assumpsit  against  him.  Till  payment  of  duties,  the 
goods  were  quasi  in  custodia  Icgis,  and  remained  subject  to  the 
right  of  stoppage  in  transitu. {4) 

69.  A  sold  to  B  a  quantity  of  tallow,  upon  a  wharf,  at  so 
much  per  hundred  weight;  and  on  the  same  day  gave  him  an 
order  upon  the  wharfinger  to  weigh,  deliver,  transfer  and  re- 
house the  quantity  sold.  The  wharfinger  gave  B  an  acknow- 
ledgment of  transfer  to  the  account  of  C,  and  that  C  was  to  pay 

(1)  Ellis  V.  Hunt,  3  T.  R.  464. 

(2)  Smith  V.  Goss,  1  Camp.  282. 

(3)  iMills  V.  Ball,  2  Bos.  &  P.  457. 

(4)  Nortliey  v.  Field,  2_Esp,  613. 


208  STOPPAGE    IN    TRANSITU.  [Chap.    VIII. 

the  charges  from  such  a  date.  This  acknowledgment  B  trans- 
ferred to  C.  B  liaving  become  bankrupt,  A  notified  the  wharfin- 
ger not  to  deliver  the  tallow  to  B's  order.  C  brings  trover 
against  the  wharfinger.  Held,  the  wharfinger  kept  the  tallow, 
as  agent  for  C,  and  could  not  defend  against  the  action  on  the 
ground  of  A's  right  to  stop  in  transitu. (l) 

70.  Questions  of  stoppage  iii  transitu  have  frequently  arisen, 
in  cases  involving  the  mutual  rights  and  duties  o(  principal  and 
agent. 

71.  Where  goods  are  sold  to  an  agent,  upon  his  own  credit, 
and  the  principal  becomes  bankrupt,  the  agent  may  stop  them 
in  transitu,  and  change  their  direction  adverse  to  the  bankrupt. 
But  if  the  agent  give  a  new  direction  to  them,  in  furtherance  of 
the  principal's  usual  course  of  business,  the  goods  will  pass  to 
the  assignees  of  the  latter,  as  being  in  the  order  and  disposition 
of  the  bankrupt. (2) 

72.  But  in  general  a  factor  cannot  slop  goods  in  transitu. 
His  lien  is  lost  by  letting  them  go  out  of  his  possession. (3)* 

73.  B,  a  trader  in  London,  ordered  goods  from  D  a  corres- 
pondent in  Dantzic.  D  to  draw  for  the  price  upon  F  at  Ham- 
burgh, who  had  agreed  to  accept  bills,  in  consideration  of  re- 
ceiving a  commission.  The  bills  of  lading  and  invoices  to  be 
sent  by  D  from  Dantzic  to  F,  and  F  to  send  them  to  B.     F  ac- 

(1)  Hawes  V.  Watson,  2  B.  &  C.  540. 

(2)  Hawkes  v.  Dunn,  1  Tyr.  413.     1  C.  &  .1.  519. 

(3)  1  E.4.3.  100. 


*  By  the  same  means,  a  factor  also  loses  his  lien  (technically  so  called)  upon  the 
principal's  goods.  Agreement  between  A,  a  manufacturer,  and  B,  a  merchant,  in 
Great  Britain,  that  B  woidd  ship  goods  manufactured  by  A  to  A's  customers  in  the 
United  States,  pay  the  shipping  charges,  and  make  advances  on  goods  shipped.  A 
authorized  an  agent  of  B  in  the  United  States,  to  collect  debts  due  A,  and  remit  the 
money  to  B,  who  was  to  credit  A  accordingly.  Money  to  be  sent  at  B's  risk,  but 
drafts  at  A's.  A,  having  received  an  order  from  a  customer,  forwarded  the  goods  to 
B,  who  sent  ihcm  to  the  purchaser.  The  latter  accepted  a  part,  but  refused  the  rest. 
In  a  trustee  process  against  A,  and  the  purchaser  as  trustee,  held,  B  had  no  lien  upon 
the  goods  in  the  supposed  trustee's  hands,  or  the  money  due  from  him.  B  made  his 
remittances  of  goods,  not  to  his  agent,  but  to  a  purchaser  from  A,  and  would  hava 
had  no  tight  to  detain,  open  or  sell,  any  part  of  them.  Hall  v.  Jackson,  20  Pick.  194. 
See  8  Cranch,  418.     1  Wash.  178,     8  Pick.  73. 


Chap.    VIII,]  STOPPAGE    IN    TRANSITU.  209 

cepted  the  bills,  and  forwarded  bills  of  lading,  made  to  the  or- 
der of  the  shippers,  and  unindorsed,  to  B  ;  who  received  them, 
with  the  invoices  and  letter  of  advice,  five  days  after  commit- 
ting an  act  of  bankruptcy.  F  also  becoming  bankrupt,  D  took 
up  the  bills  drawn  upon  him.  Held,  F  had  no  right  of  stoppage 
in  tiansitu,  being  a  mere  surety  ;  and  that  the  general  agent  of 
F  at  London,  having  obtained  the  bills  of  lading  from  B  after 
his  bankruptcy,  under  an  agreement  to  sell  the  goods  and  ap- 
ply the  proceeds  to  the  bills  drawn  against  them,  could  not  re- 
tain the  property  against  the  assignees  of  B,  either  in  respect  to 
F  or  a  stoppage  on  account  of  D,  who,  after  his  possession  and 
after  trove)-  brought  by  B's  assignees,  approved  by  letter  of  his 
receiving  the  bills  of  lading  and  goods  :  because  there  was  no 
adverse  stoppage  in  transitu,  but  the  goods  were  obtained  by 
agreement  with  B  after  his  bankruptcy,  even  if  the  defendant 
could  be  regarded  as  agent  for  the  shippers  at  the  time,  by  rela- 
tion.(1) 

74.  Goods  were  consigned  on  the  joint  account  of  A  the  con- 
signor and  B  the  consignee,  with  a  bill  of  lading  to  deliver  to 
B  or  his  assigns,  which  B  indorsed  and  delivered  to  C  on  con- 
dition of  his  making  advances,  C  did  not  comply  with  this  con- 
dition, but  claimed  to  retain  the  goods  as  security  for  prior  ad- 
vances. Held,  A  might  stop  the  goods  in  transitu.  B,  as  a 
factor  could  not  have  pledged,  though  he  might  have  sold,  even 
the  goods  themselves.  Hence  he  had  no  power  to  pledge  the 
bill  of  lading.  The  proposition,  sometimes  stated,  that  the  in- 
dorsement of  a  bill  of  lading  operates  like  that  of  a  bill  of  ex- 
change, applies  only  to  an  absolute  sale  of  the  goods,  C,  in  the 
exercise  of  reasonable  caution,  should  have  inquired  for  the  letter 
accompanying  the  bill  of  lading,  which  would  have  shown  in 
what  relation  B  stood  to  A. (2) 

75.  A,  a  trader  in  England,  gave  an  order  to  B,  abroad,  to 
ship  to  him  certain  goods,  B  purchased  the  goods  on  his  own 
credit,  not  naming  A  to  the  vendor,  and  shipped  them'  at  cost, 
with  the  addition  of  a  commission.     A  became  bankrupt,  hav- 


(1)  Siffkcn  V.  Wray,  6  E.  371.     1  B.  &  P.  56?!. 

(2)  Newsoni  v.  TlioriUon,  6  E.  17. 

27 


210  STOPPAGE    IN    TRANSITU.  [Chap.    VIII. 

ing  previously  accepted  bills  in  part  payment  drawn  by  B  for  the 
price.  The  agent  of  B  procured  the  bill  of  lading  from  a  bro- 
ther of  A  who  had  possession  of  it.  In  an  action  of  trover 
brought  by  the  assignees  of  A  against  the  agent,  held,  B  was  so 
far  a  vendor  in  relation  to  A,  that  he  had  the  right  of  stopping 
the  goods  in  transitu.  Under  the  circumstances,  there  was  no 
privity  between  the  original  vendor  and  A,  nor  did  A  and  B 
stand  in  the  relation  of  principal  and  factor.  Perhaps  they  were 
not  vendee  and  vendor /or  all  purposes,  but  B  pledged  his  credit 
for  A,  and  the  latter  was  not  liable  to  the  original  vendor,  un- 
less the  goods  came  to  his  use,  and  he  failed  to  pay  B  for  them. 
The  agent,  having  come  lawfully  into  possession  of  the  proper- 
ty, had  a  lien  upon  it  till  fully  paid.  It  was  doubted  by  the 
Court,  whether  there  was  any  distinction,  as  to  the  right  of  stop- 
page in  transitu,  between  a  factor  and  a  vendor.  Lawrence,  J., 
remarked,  that  if  the  right  were  confined  to  vendor  and  vendee, 
it  would  nearly  put  an  end  to  its  application  in  Great  Britain.(l) 

76.  Where  the  vendor  and  vendee  stand  in  the  relation  of 
principal  and  factor,  and  the  latter  is  in  advance  to  the  former, 
has  accepted  bills  drawn  by  him,  and  paid  part  of  the  freight ; 
the  vendor  has  still  the  right  of  stoppage  in  transitu  (2) 

77.  On  the  other  hand,  where  the  factor  of  a  vendee  has  the 
bill  of  lading,  indorsed  to  order,  and  is  under  acceptances  for 
the  vendee  on  general  account;  the  vendor  rnay  still  stop  the 
goods,  before  they  come  to  the  hands  of  such  factor.  The  ven- 
dee and  his  factor  being  both  bankrupt,  the  messenger,  under 
the  commission  of  the  latter,  went  aboard  the  ship  upon  her  ar- 
rival, and  seized  the  cargo.  The  agent  of  the  vendor  had  pre- 
viously notified  the  captain  to  deliver  the  cargo  to  him  ;  which 
the  captain  had  agreed  to  do.  Held,  trover  would  lie  in  favor 
of  the  vendor  against  the  assignee  of  the  factor.  If  a  factor 
has  received  the  proceeds  of  goods  mid,  he  has  a  lien  to  the  ex- 
tent of  his  indemnity;  but  he  has  no  rights,  prior  to  possession, 
in  respect  to  the  consignment,  except  tho^e  pertaining  to  his 
character  as  factor,  and   necessary  to  effect  the  object  of  the 

(1)  Frei»e  t.  Wray,  3  E.  93. 

(2)  3  T.  R.  119,  78S.     Kialv.k  r.  Crai?,  4  Bro.  P   C    47. 


Clinp.   VIII.]  srorr.vi.fc:   in  transitu.  ill  I 

coiiaiiTumont.  In  this  case,  no  mention  was  niatle  of  any  sccu- 
rit}/  for  advances.  Hence,  the  factor  had  a  lien  only  on  tlie 
property  in  his  possession.  C'ircnnistances  having  changed,  so 
that  the  factor  could  not  perform  his  duties  as  such,  his  assignee 
was  not  entitled  to  claim  the  benefit  of  a  consignment,  made  as 
matter  of  personal  confidence,  and  which  the  assignee  could  not 
execute.  There  was  no  assignnient  of  the  bill  of  lading,  except 
to  enable  the  factor  to  receive  the  goods,  and  carry  them  to  the 
account  of  the  principal.  The  plaintitV  did  all  in  his  power  to 
slop  the  goods,  and  enough  to  sustain  this  action.(l) 

78.  The  defendant,  a  commission  agent,  purchased  goods  of 
the  plainiitls  at  Manchester  for  one  A,  informing  the  jdaintifts 
that  they  were  to  he  sent  to  [.isbon.  A  had  no  warehouse  at 
Manchester,  and  (he  gooils  were  delivered  to  the  defendant,  to 
be  forwarded  as  above-tnentioned.  A  having  failed,  held,  the 
plainlids  might  stop  the  goods  in  the  hands  of  the  defendant, 
because  they  were  in  trdiiaitu  till  their  arrival  at   Lisbon. (2) 

70.  The  plaintifV  claimeil  certain  goods,  as  the  seller  of  them, 
frouj  the  defendants,  to  whom  the  goods  were  delivered  to  be 
forwarded  to  the  defendants'  correspondent,  A,  of  Lisle.  Upon 
the  insolvency  of  A,  the  defendant  withdrew  the  goods  from  the 
hanils  of  B  of  Ostend,  to  whoui  they  had  sent  them  in  a  course 
of  conveyance  towards  and  for  A  at  Lisle.  The  defendants  in- 
sisted, as  against  the  plaintiffs,  that  upon  the  delivery  of  the 
gt>04ls  to  I  hem  for  15,  the  property  was  vested  in  B,  in  whose 
right,  but  for  their  own  benefit  ^in  account  with  B,  they  claim- 
ed todetain  the  gooils.  Held,  the  transitiis  was  not  at  an  end, 
and  the  pluintitV  recovered  (It) 

8t).  It  is  said,  that  a  bill  of  lading  indorsed,  and  remaining 
in  the  hands  of  the  original  consignee,  cannot  interfere  with 
the  vendor's  right  to  stop  the  goods  before  they  arrise  into  the 
possession  or  under  the  control  of  the  consignee,  if  he  become 
bankrupt    or    insolvent. (4)      Upon    this   point,    however,   there 

(I)  I'lilton  V.  'riiompsiin,  6  M.  At  S.  M'), 

(3)  (.'oalos  V.  Kitilum,  6  B.  &  C.  -tO.'. 

(3)  Slokt<a  V.  L*  Rivieic,  (oiltnl  iii  Bolilliiisk  v.  lnj;li»  )  j  E.  J8l. 

ii)  Tuck*!'  V.  H(4lll|)hlO>,  4    \Uiii,.    ji^. 


213  STOPPAGE    IN    TRANSITU.  [Chap.    VIII. 

seems  to  be  some   conflict  of  authorities,  the  decision   in  each 
case  being  modified  :>y  its  own  peculiar  circumstances.(I) 

81.  Where  goods  are  shipped  upon  credit  in  a  foreign  port, 
in  a  vessel  belonging  to  the  consignee,  and  the  master  signs  a 
bill  of  lading  to  deliver  them  to  the  consignee;  the  transilus  is 
at  an  end,  and  there  is  no  right  of  stoppage.(2)* 

82.  So  a  vendor  may  regain  possession  of  the  goods  sold,  by 
taking  a  bill  of  lading  from  the  captain  to  whom  they  have  been 
delivered.  Thus,  goods  purchased  by  A  from  B  were  deliver- 
ed, on  board  a  ship  chartered  by  A,  in  Russia.  By  a  Russian 
ordinance,  where  goods  had  been  delivered  in  this  way,  the  ven- 
dor might  regain  possession  of  them  by  legal  process  upon  the 
bankruptcy  of  the  vendee,  and  retain  them  till  payment  of  the 
price.  B  learning  that  A  was  insolvent,  applied  to  the  captain 
to  sign  bills  of  lading  to  his  (B'sJ  order,  which  was  done,  with- 
out issuing  any  legal  process.  Held,  this  proceeding  was  a  sub- 
stantial compliance  with  the  Russian  law,  and  that  the  captain 
was  bound  to  deliver  the  goods  in  England  to  the  order  of  B, 
not  to  the  assignees  of  A. (3) 

83.  A  consignor  of  goods  advised  his  principal  of  his  inten- 
tion to  make  a  consignment,  put  them  on  board  a  general  ship, 
and  delivered  a  bill  of  lading  to  the  master,  to  be  sent  to  the 
consignee.  Held,  the  property  hereby  vested  in  the  latter,  so 
that  he  had  no  right  to  countermand  the  goods,  though  the  ves- 
sel had  not  left  her  port  of  lading. (4) 

84.  Goods  were  sold  free  on  board  the  vessel.  Upon  ship- 
ment, the  agent  of  the  vendor  tendered  a  receipt,  which  the 
mate,  in  the  captain's  absence,  refused  to  sign,  and  the  ne.xt  day 

(1)  Sec  Waller  v.  Ross,  2   VVa^ll.  C.  C.  283.     1  Pot.  386. 

(2)  Boiin  V.  Miiffnanle,  1  Hawlc,  9.     (Huston  and  Smith,  Js.  dissented.) 

(3)  Inglis  V.  Asherwood,  1  E.  515. 
(f^  Sammernitl  v.  Elder,  1  Bin.  106. 


*  It  was  remarked  in  this  case,  that  the  master  was  a  special  agent  of  the  vendee, 
delivery  to  whom  was  such  to  the  latter  ;  not  a  carrier  or  midille-man.  Ho  was  under 
the  control  of  the  vendee,  and  might  be  dismissed  by  him.  The  vendor  had  no  control 
over  the  good.s  aflor  delivery  to  the  master,  and  no  connexion  with  him.  On  the  other 
hand,  the  master  could  have  no  claim  against  the  vendor,  and  in  this  respect  differed 
from  a  carrier,  who  may  claun  freight  from  the  vendor,  if  the  vendee  fails,  or  refusei 
to  receive  the  good^.     The  circumstances  showed  an  actual  delivery. 


Chap.    VIII.]  STOPPAGE    IN    TRANSITU.  213 

signed  a  bill  of  lading  to  the  vendee.     Held,  the   right  of  stop- 
ping in  transitu  continued.(l) 

85.  A  quantity  of  flour,  purchased  by  the  plaintiff  was  load- 
ed in  a  general  ship,  and  the  master  signed  three  bills  of  lad- 
ing for  delivery  to  the  plaintiff  or  his  assigns,  but  the  bill  ex- 
pressed that  the  shipment  was  on  account  and  at  the  risk  of  the 
shippers.  A  day  or  two  after  the  shipment,  and  before  the  in- 
voice, bill  of  lading,  or  letter  of  advice  was  sent  to  the  con- 
signee, the  shipper,  finding  himself  on  the  verge  of  insolvency, 
re-sold  the  flour  to  the  defendant,  of  whom  he  purchased  it  on 
credit.  The  shipper  was  indebted  to  the  consignee,  and  in- 
tended that  the  latter  should  apply  the  net  proceeds  of  the  pro- 
perty on  account ;  but  this  intention  was  never  communicat- 
ed to  him,  nor  the  consignment  made  at  his  request.  Held, 
the  vendee  had  acquired  no  vested  interest  in  the  flour,  and  the 
owner  might  countermand  it  at  any  lime  before  actual  delivery 
to  the  plaintiff.(2) 

86.  After  assignment  of  the  bill  of  lading  for  valuable  con- 
sideration, the  vendor's  right  of  stoppage  is  at  an  end  ;  such  as- 
signment being  equivalent  to  a  transfer  of  the  goods  them- 
selves.(3)* 

87.  Indorsement  and  delivery  of  a  bill  of  lading  have  the  ef- 
fect of  passing  the  goods  to  the  indorsee,  if  done  bonajidc,  for 
consideration,  and  without  collusion  ;  although  the  indorsee 
know  that  the  original  vendor  has  received  payment  only  in  fu- 

(1)  Buck  V.  Haifield,  5  B.  &  A.  132. 

(2)  Walter  v.  Ross,  2  Wash.  G.  C .  283. 

(S)  Lickbairow  v.  Maion,  4  Bro.P.  C.  57.  Riddle  v.  Varnutn,  20  Pick.  280, 
Warren  V.  Sproul,  2  Marsh.  635.     5  T.  R.  367.  6.  131.  2.  63.    3H.  Bi.211. 


*  A  bill  of  lading  given  before  the  goods  are  put  on  board  is  fraudulent,  and  even 
a  bona  fide  indorsee  of  it  gains  no  title  to  the  property.  Osey  v.  Gardner,Holi,  405. 
So,  indorsement  of  a  bill  of  lading  without  consideration  passes  no  title  lo  the  good?. 
Warinfv.  Cox,  1  Camp.  369.  The  question  as  to  the  effect  of  such  indorseraer>t 
upon  the  right  of  stoppage  seems  to  have  received  Us  fust  elaborate  discussion  in  the 
case  of  Lickbarrow  v.  Mason,  which  was  successivily  argued  in  the  King's  Bench, 
the  Exchequer  Chamber,  and  the  House  of  Lords.  The  King's  Bench,  to  which  the 
case  was  sent  back,  adhered  to  their  original  judgment  against  the  right,  and  this  has 
ever  since  been  considered  as  law.  (See  2  T.  R.  65.  1  H.  Bl.  357.  2.  211.  5  1 . 
R.  367.  683.    6  E.  20.) 


214  STOPPAGE    IN    TRANSITU.  [Chap.    VIII. 

ture  acceptances.  In  such  case,  the  latter  has  no  right  of  stop- 
ping in  transitu.  It  would  be  otherwise,  if  the  vendor  had  ex- 
pected or  agreed  that  he  should  be  paid,  before  any  assignment 
of  the  bill  of  lading.  So  if  the  assignee  of  the  bill  of  lading 
had  known  the  vendee  to  be  insolvent,  and  that  he  had  not  ac- 
cepted the  bills,  or  was  not  likely  to  pay.  The  true  criterion 
as  to  the  effect  of  such  indorsement  is,  whether  the  assignee 
knew  of  such  circumstances  as  rendered  the  instrument  not 
fairly  and  honestly  assignable. (1) 

88.  B  ordered  goods  from  A  abroad,  to  be  paid  for  at  a  fu- 
ture time.  Bills  of  lading  were  signed  by  the  captain  of  the 
ship,  and  one  of  them  sent  to  B,  who  before  arrival  of  the  vessel 
sold  the  goods  and  indorsed  the  bill  of  lading  to  C  After  ar- 
rival of  the  ship,  and  delivery  of  part  of  the  goods  to  the  agent 
of  C,  B  became  insolvent,  not  having  paid  A.  Held,  a  delivery 
of  part  of  the  goods  was  that  of  the  whole,  and  that  A  had  no 
right  of  stoppage  in  transitu. {2) 

89.  Where  a  vendee  fails  to  give  the  security  which  he  pro- 
mised, but  obtains  a  bill  of  lading  of  the  goods,  which  he  in- 
dorses to  a  third  person,  and  the  indorsee  brings  trover  against 
the  wharfinger  of  the  vendor  having  possession  of  the  property  ; 
the  insolvency  of  the  vendee  is  no  defence  to  the  action,  unless 
it  was  known  to  the  plaintiff  (3) 

90.  Indorsement  of  the  bill  of  lading  by  the  vendor  to  a  third 
person,  while  the  goods  remain  in  transitu,  will  authorize  such 
third  person  to  stop  and  bring  an  action  for  them. 

91.  The  vendor  of  goods,  having  ascertained,  while  they  re- 
mained in  the  hands  of  the  wharfinger,  that  the  vendee  had 
stopped  payment,  indorsed  the  bill  of  lading  to  the  plaintiff, 
without  consideration,  and  directed  him  to  take  possession. 
The  plaintiff  accordingly  demanded  the  goods,  but  delivery  was 
refused.  Held,  at  the  time  of  such  demand,  the  right  of  stop- 
page in  transitu  was  not  at  an  end,  and  that  the  plaintiff  had  a  suf- 
ficient special  property  to  maintain  trover. (4) 

(1)  Cuming  v.  Brown,  9  E.  506.  Veilue  v.  Jewell,  4  Camp.  31.  Tucker  v. 
Humphrey,  4  Binfj.  522. 

(2)  Slubey  v.  Heyward,  2  H.  Bl.  504. 

(3)  HoUiday  v.  Mann,  2  Carr.  &  P.  509. 

(4)  Morison  v.  Gray,  9  Moore^  4S4. 


Chap.    VIII.]  STOPPAGE    IN    TRANSITU.  215 

92.  Where  the  bill  of  lading  has  been  indorsed  only  as  secu- 
rity, the  vendor  has  still  the  right  of  stoppage,  subject  to  the 
actual  claims  of  the  assignee  against  the  purchaser. 

93.  The  vendee  of  goods  indorsed  the  bill  of  lading,  in  con- 
sideration of  an  advance  of  money  by  the  indorsee.  Held,  the 
vendor  had  still  an  equitable  right  of  quasi  stoppage  in  tran- 
situ ;  subject  however  to  the  right  of  the  assignee  to  be  repaid 
his  advances.  Such  assignee,  however,  is  bound  to  repay  him- 
self from  other  property  of  the  vendee  in  his  hands.  If  he  does 
not,  but  retains  the  goods  sold,  for  this  purpose,  the  vendor 
himself  acquires  a  lien  on  such  other  property  for  the  price  of 
the  goods. (1) 

94.  A  consignee,  to  whom  the  bill  of  lading  was  indorsed  in 
blank,  assigned  it  as  security  for  acceptances  less  in  amount 
than  the  value  of  the  goods.  The  vendee  and  assignee  then 
entered  into  an  agreement  to  become  partners  in  relation  to  the 
goods,  which  agreement  showed  that  the  consignor  had  not 
been  paid.  The  vendee  having  become  bankrupt,  held,  the 
vendor  had  still  the  right  of  stoppage  in  transitu,  and  that  the 
assignee  could  not  maintain  Grower  against  him  for  the  goods.(2) 

95.  W  shipped  at  Leghorn,  twenty  three  casks  of  oil,  on  ac- 
count and  by  order  of  L  at  Liverpool,  and  forwarded  to  him 
bills  of  lading.  Before  arrival  of  the  oil,  L  indorsed  the  bill 
and  deposited  it  with  H,  who  advanced  money  upon  it,  having 
before  done  the  same  upon  other  goods  of  L  deposited  with  him. 
Upon  arrival  of  the  oil,  L  having  previously  become  bankrupt, 
and  W  not  being  paid,  the  agent  of  W  claimed  it  from  the  ship- 
master, B.  B  delivered  the  oil  to  H,  who  afterwards  sold  the 
goods  of  L  and  the  oil  of  W.  The  debt  from  L  to  H  was  paid 
by  the  proceeds  of  L's  goods.  H  paid  his  own  debt,  and  de- 
posited the  net  proceeds  of  the  oil  with  a  stranger,  to  await  the 
issue  of  an  arbitration  in  reference  to  all  controversies  between  W 
and  the  assignees  of  L.  The  award  was  referred  to  the  opinion 
of  the  Court.  Held,  W  had  no  right  to  take  possession  of  the 
oil  at  the  time  when   his  agent  claimed  it,  upon  the  insolvency 

(1)  Westzinthius,  2  Nev.  &  M.  644. 

(2)  Salomons  v.  Niss«n,  2  T.  R.  674. 


216  STOPPAGE    IN    TRANSITU.  [Chap.    VIII. 

of  L,  because  H  had  the  right  of  property  and  possession,  by  in- 
dorsement of  tlie  bill  of  lading;  and  W  had  no  right  of  posses- 
sion, even  after  satisfaction  of  the  lien  of  H.  But,  in  Equity, 
the  transfer  to  H  was  a  mere  pledge  or  mortgage,  and  therefore 
W,  by  the  attempted  stoppage  in  transitu,  acquired  a  right  to 
the  goods  in  equity,  subject  to  the  lien  of  H  against  the  assignees 
ofL.(l) 

96.  The  following  cases  present  peculiar  circumstances,  un- 
der which  the  right  of  stoppage  in  transitu  has  been  allowed, 
notwithstanding  an  indorsement  of  the  bill  of  lading. 

97.  A,  residing  at  Boston,  having  ordered  certain  goods  from 
B  at  Liverpool,  B  shipped  ihem  in  a  general  freighting  vessel, 
which  was  consigned  to  B  and  designated  by  A.  A  billof  lad- 
ing was  obtained  by  B,  by  which  the  goods  were  to  be  deliver- 
ed to  A.  B  withheld  the  bill  of  lading  from  A,  and  afterwards 
enclosed  it  with  an  invoice  in  a  letter  to  his  (B's)  agent,  with 
directions  to  deliver  it  to  A  only  on  condition  of  his  paying  for 
the  goods.  There  was  a  balance  due  from  B,  independently  of 
these  goods.  Before  their  arrival  at  Boston,  A  became  insol- 
vent, and  assigned  his  property  to  the  plaintiff  for  benefit  of 
creditors,  agreeing  to  indorse  and  deliver  the  bill  of  lading  to 
the  plaintiff,  when  received.  The  bill  of  lading  was  received 
by  A  after  the  assignment,  handed  to  the  plaintiff  without  in- 
dorsement, and  indorsed  after  this  suit  was  commenced.  Upon 
arrival  of  the  goods,  the  defendant,  as  agent  of  B,  being  also 
owner  of  the  vessel,  obtained  possession  of  them;  and  the 
plaintiff  brings  trover  against  him.  Held,  the  action  could  not 
be  maintained,  but  that  B  had  the  right  of  stoppage  in  transitu 
as  against  the  plaintiff,  although  at  the  time  of  assignment  the 
latter  supposed  there  was  a  balance  due  A,  at  the  execution  of 
the  orders  for  shipment  of  the  goods.  The  plaintiff  must  be 
held  to  stand  precisely  in  the  situation  of  A  himself,  and  not  as 
a  bona  fide  purchaser,  claiming  under  a  bill  of  lading,  without 
notice  of  any  lien,  set-off  or  adverse  claim.  He  could  not 
claim  under  the  indorsement,  because  this  was  not  made  till  af- 
ter commencement  of  suit.     Nor  did  the  agreement  to  indorse 

(1)   Westzintlius,  &c.,  5  BaMi   &,  Ad.  817. 


Chap.    VIII.]  STOPPAGK    IN    TKANSITU.  217 

make  any  difference.  The  vendor  intended  to  prevent  such  in- 
dorsement by  enclosing  the  bill  of  lading  to  his  own  agent,  to 
be  delivered  only  on  payment  or  security.  Nor  was  the  plain- 
tiff a  purchaser  without  notice.  There  was  no  advance  of  mO' 
ney,  credit  or  dealing  on  the  strength  of  the  goods.  He  kijew 
of  the  vendee's  insolvency,  and  that  the  vendor  was  a  creditor 
and  had  the  right  of  st0[)page ;  and  thid  was  sufficient  to  put 
him  upon  inquiry.(I) 

98.  A,  a  merchant  in  England,  sent  goods  to  B  in  Quebec 
for  sale  on  his  account.  Before  making  a  sale,  on  ascertaining 
the  proceeds  of  the  goods,  B  shipped  to  A  three  cargoes  of  tim- 
ber, to  credit  in  account.  Two  of  them  arrived,  and  against 
the  third,  while  yet  in  transitu,  B  drew  a  bill  of  exchange  for 
the  amount  of  it.  In  the  mean  time,  A  dishonored  the  bill  and 
failed,  having  previously  received  and  indorsed  the  bill  of  lad^ 
ing.  Held,  B,  under  these  circumstances,  retained  the  right  of 
stoppage  in  transitu,  although  the  mutual  accounts  between  the 
parties  had  not  been  adjusted,  and,  his  agent  having  notified 
the  indorsee  of  the  bill  of  lading  of  his  claim,  though  having  re- 
ceived no  specific  authority  to  do  so,  that  B  might  maintain  tro- 
ver against  the  ship-owner,  who  had  delivered  the  goods  to  the 
indorsee.  The  case  might  have  been  otherwise,  had  B  sent  his 
cargoes  in  return  for  the  goods  previously  forwarded  to  him  by 
A.  But,  as  a  bill  was  specifically  drawn  to  meet  the  third  car- 
go, B  was  not  bound  to  show  that  upon  a  final  settlement,  A 
would  be  indebted  to  him. (2) 

99.  There  are  other  documentary  evidences  of  title,  as  to 
which  the  question  arises,  whether  possession  by  the  vendee 
will  put  an  end  to  the  right  of  stoppage  in  transitu.  It  has 
been  held  that  the  right  is  not  barred  by  the  mere  possession  of 
an  invoice,  which  is  only  a  mercantile  name  for  a  bill  of  parcels 
or  .shop-bill.  (3) 

100.  A  vendee  of  goods  lodged  an  order  to  deliver  them  with 
the  wharfinger,  who  transferred  them  in  his  books  to  the  name 
of  the  vendee.     Held,  the  wharfinger  must  hold  as  agent  of  the 


(1)  Stanton  v.  Eager,  16  Pick.  467. 

(2)  Wood  V.  Jones,  7  D.  &  R.  126. 

(3)  Tucker  v.  Ilumphreyf,  4  Biiig.  622.     Hammond  v.  Anderson,  2  Camp.  243. 

28 


218  STOPPAGE    IN    TRANSITU.  [Chap.    VIII. 

latter,  and  the  right  of  stopping  in  transitu  was  gone.  So  a 
delivery  note  lodged  with  the  wharfinger  passes  the  property, 
though  no  transfer  be  made  in  the  books.(l) 

101.  The  vendee  of  goods  gave  to  a  third  person  a  slapping 
note  of  them,  and  a  delivery  order  on  the  wharfinger  to  deliver 
the  goods  upon  their  arrival.  Held,  they  were  still  subject  to 
stoppage  in  transitu.  A  shipping  note  does  not  amount  to  a 
bill  of  lading,  which  is  exactly  like  a  bill  of  exchange,  and  pass- 
es the  property  by  indorsement,  not  by  delivery  alone.  But  a 
shipping  note  is  not  indorsabIe.(2) 

102.  It  has  been  said, (3)  that  there  is  no  case,  in  which,  af- 
ter a  re-sale  of  goods,  and  payment  of  the  price,  or  money  ad- 
vanced on  the  credit  of  the  goods  by  the  second  vendee,  there 
had  been  a  stoppage  in  transitu;  and  that  under  these  circum- 
stances the  law  will  not  sanction  such  stoppage.  But  in  other 
cases  it  is  held,  that  a  re-sale  by,  and  payment  to,  the  first  pur- 
chaser, does  not  destroy  the  right  of  stopping  in  transitu.  And 
this  doctrine  is  based  upon  the  general  principle  of  law,  that  one 
who  has  not  the  property  and  right  of  possession  in  goods,  can- 
not sell  them  ;  hence  if  the  original  vendor  chooses  to  retain 
or  stop  them  in  transitu,  the  second  vendee  is  in  no  better  situ- 
ation than  the  first.  (4) 

103.  If  the  first  vendor  of  goods  does  any  thing  which  can  be 
construed  as  sanctioning  a  re-sale  by  his  vendee,  this  destroys 
his  right  of  stopping  in  transitu.{6) 

104.  A  vendor  delivered  to  the  vendee  a  bill  of  parcels  for 
goods  lying  in  a  public  store,  and  an  order  on  the  keeper  for 
their  delivery;  and  the  vendee  re-sold  them  for  valuable  con- 
sideration to  a  bona  fide  purchaser.  Some  suspicious  circum- 
stances attended  the  transaction,  which  however  were  left  to  the 
jury.  Held,  there  was  no  right  of  stoppage  in  transitu,  and  the 
Court  would  not  presume  fraud  nor  grant  a  new  trial. (6) 

105.  Sale  of  a  specific  quantity  of  oil  then  in  existence,  to  be 

(1)  Lucas  V.  Dorrion,  7  Taun.  278. 

(2)  Akerman  v.  Humphery,  1  Car.  &  P.  53. 

(3)  Lickbarrow  v.  Mason,  6  E.  34  n.     Hunn  v.  Bovvne,  2  Caine?,  38. 

(4)  Craven  v.  Ryder,  6  Taun.  433.     Dixon  v.  Yales,  5  Barn.  &  Ad.  338.  (qii.) 

(5)  Hawes  v.  Watson,  2  B.  &  C.  343. 

(6)  Hollingsworlh  v.  Napier,  3  Caincs,  182. 


Chap.     Vlll.]  STOPPAGE    IN    TRANSITU.  219 

at  tlie  vendee's  risk.  The  place  where  the  oil  was,  and  the  ship 
which  was  to  carry  it,  were  named.  There  was  a  complete 
transfer  to  the  vendee,  and  payment  was  made.  The  vendee 
sold  to  A,  with  an  order  to  ihe  vendor  to  deliver  to  him,  upon 
which  the  vendor  indorsed  his  acceptance.  Held,  the  vendor 
thereby  attorned  to  the  sale  and  became  the  bailee  of  A,  and  the 
right  of  stopping  i/j  transitu  was  at  an  cnd.(l) 

106.  A  sold  to  B  timber  lying  at  his  (A's)  wharf  for  bills  on 
time.  The  timber  was  then  marked  by  B,  and  small  parts  of  it 
sent  to  two  different  places  by  A.  Before  maturity  of  the  bills, 
B  sold  the  whole  to  C,  who  paid  B  for  it.  C  gave  notice  to  A, 
who  said  "  it  was  very  well,"  and  C  then,  in  presence  of  A, 
marked  all  the  timber  lying  at  A's  wharf,  and  afterwards  that 
part  which  had  been  sent  away.  Before  maturity  of  the  bills,  B 
failed.  Held,  A  could  not  reclaim  any  part  of  the  property,  as 
being  in  transitu. {2) 

107.  A  sold  to  B  a  quantity  of  cotton,  taking  his  note  at  six- 
ty days,  and  retaining  possession  of  the  cotton.  B  informed  C, 
that  he  had  cotton  for  sale  in  A's  store,  and  C  thereupon  called 
on  A  and  requested  to  see  it.  A  ordered  his  clerk  to  exhibit 
the  cotton,  having  a  mark  upon  it.  C  examined  the  cotton  on 
account  of  D,  and  purchased  it  of  B,  who  took  D"s  notes,  which 
were  subsequently  paid,  and  gave  an  order  upon  A  for  delivery. 
The  order  was  not  immediately  presented,  nor  any  notice  given 
to  A,  in  whose  possession  the  property  was  allowed  to  remain. 
B  afterwards  became  insolvent.  A  placed  B's  note,  together 
with  the  cotton  in  the  hands  of  E,  as  security  for  money  bor- 
rowed. The  day  before  maturity  of  the  note,  C  produced  to  A 
the  order  for  delivery  given  by  B,  bearing  date  long  previously, 
and  demanded  the  cotton,  but  A  refused  to  deliver  it.  B's  note 
having  been  protested,  E  purchases  the  cotton,  and  D  brings  an 
action  of  trover  against  him.  Upon  the  trial,  A  testified  that  he 
did  not  consider  the  property  as  left  for  storage.  Held,  as  the 
cotton  was  first  given  to  the  defendant  to  sell  on  account  of  A, 
after  the  insolvency  of  B,  then  deposited  as  a  pledge,  and  after- 

(1)  Whilehouse  v.  Frost,  12  E.  614. 

(2)  Slovcld  V.  Hughes,  14  E.  308. 


220  STOPPAGE  IN  TRANSITU.  [Chap.  VITT. 

wards  sold  ;  the  defendant  stood  in  the  same  position  that  A 
would  have  done.  The  sale  being  on  credit,  there  was  no  lien, 
and  no  right  of  stoppage  in  transitu  against  an  innocent  pur- 
chaser. (Kent,  J.,  dissented  ;  upon  the  ground  that  there  was 
no  delivery,  nor  any  application  for  delivery,  till  after  the  insol- 
vency of  B  ;  that  the  defendant  had  as  good  an  equity  as  the 
plaintiff,  and  having  possession  besides,  his  title  must  pre- 
vail.)(l) 

108.  A  vendor  may  stop  the  goods  in  transitu,  notwithstand- 
ing a  part  payment  by  the  vendee.  If  it  were  otherwise,  this 
right  would  be  lost  by  payment  of  any  part  of  the  price,  howev- 
er small ;  or  even  of  mere  earnest.  Nor  is  he  bound  to  refund 
the  part  payment,  or  to  pay  freight. (2) 

109.  Where  bills  have  been  given  in  payment,  but  not  ex- 
pressly accepted  as  such,  the  vendor  may  stop  in  transitu. (3) 

110.  Where  the  vendor  of  goods  receives  payment  by  a  bill 
of  exchange,  drawn  by  the  vendee,  he  has  no  right  of  stoppage, 
unless  the  bill  is  dishonored.  If  it  were  otherwise,  the  right  of 
property  would  be  in  abeyance  till  the  bill  became  due.  (4) 

111.  Where  a  debtor  consigns  goods  to  his  creditor,  he  has 
no  right  of  stoppage  in  transitu,  on  account  of  the  insolvency 
of  the  latter,  because  he  loses  nothing  thereby — it  is  a  mere  ap- 
propriation of  his  own  funds.  This  right  exists  only  where  the 
property  has  not  been  paid  for. (5) 

112.  A  was  indebted  to  B  on  balance  of  accounts,  including 
bills  of  exchange  still  running,  which  were  accepted  by  B  for  A. 
A  consigned  goods  to  B,  to  meet  this  balance.  Held,  the  pro- 
perty became  vested  in  B  by  the  shipment,  and  upon  B's  insol- 
vency before  payment  of  the  bills,  A  had  no  right  of  stopping  in 
transitu.{Q) 

(1)  Hunn  V.  Bowne,  2  Caines,  38. 

(2)  Hodgson  v.  Loy,  7  T.  R.  440.     Wiseman  v.  Vandeput,  2  Vern.  203.     Newhall 
V.  Vargas,  1  Shepl.  93.     5  Ohio,  98. 

(3)  7T.  R.  64. 

(4)  Per  Park,  J.,  lb.  518.     Davis  v.  Reynolds,  1  Star.  115.     Wolley  v.  Montgome- 
ry, 3  E.  585. 

(5)  Clark  v.  Mauran,  3  Paige,  373.     Stanlon  v.  Eager,  16  Pick.  475.    Wood  v. 
Roach,  I  Yeates,  177. 

(6)  Vertue  v.  Jewell,  4  Camp.  31. 


Chap.    VIII.]  STOPPAGE    IN    TRANSITU.  221 

113.  Where  money  is  transmitted  on  a  special  account,  and 
for  a  special  purpose,  upon  the  bankruptcy  of  the  party  to  whom 
it  is  sent,  the  other  may  stop  the  money  in  transitu.  Otherwise, 
in  case  of  a  general  remittance  from  debtor  to  creditor. (1) 

114.  With  regard  to  the  persons,  by  whom  this  right  may  be 
exercised,  it  is  held,  that  where  the  vendor  is  an  alien  enemy, 
but  the  sale  is  justifiable  under  a  license,  he  has  the  right  of 
stoppage  in  transitu.  {'2) 

1 15.  Where  a  British  merchant  receives  from  the  Crown  a 
trading  license,  to  send  his  ship  in  ballast  to  the  port  of  an  ene- 
my, for  the  purpose  of  there  receiving  and  loading  a  cargo,  and 
importing  it  to  England  ;  inasmuch  as  the  act  of  the  purchaser  is 
thus  legalized,  the  sale  is  legalized  also,  as  it  respects  the 
vendor.  Hence  he  has  the  right  of  stopping  the  goods  in  tran- 
situ after  their  arrival  at  a  British  port,  the  vendee  having  be- 
come insolvent,  and  also  to  employ  an  agent  there  for  that  pur- 
pose. It  was  remarked  by  Ld.  Ellenborough,  that  the  crown 
does  not  give  any  man  a  roving  commission,  to  steal  from  or  de- 
fraud even  enemies  of  their  property.  If  it  authorizes  the 
subject  to  purchase  from  the  enemy,  it  must  be  taken  to  author- 
ize the  enemy  to  sell.  There  is  an  obvious  distinction  between 
this  ease,  and  that  of  an  alien  enemy's  bringing  a  suit  for  the 
price  of  goods  sold.  In  the  latter  case,  the  goods  have  already 
become  the  property  of  the  vendee  ;  but  here,  the  law  merely 
forbids  him  to  take  them  without  payment.  (3) 

( 1 )  Smith  V.  Bowles,  2  Esp.  678. 

(2)  15  E.  419. 

(3)  lb 


CHAPIEII   IX. 


WARRANTY. 

Section  I. — general  principles  relating  to  warrant v  of 

CHATTELS,  IN  RESPECT  TO  QUALITY. 

1 — 2.   Distinction  between  the  civil  and  the  common  law. 
10.  Fair  price  does  not  imply  loarranty. 
13,  Interior  of  an  article  sold  in  hales. 

15.  Sale  of  slave. 

16.  False  assertio7i  of  value  or  income  . 

17.  Decided  cases. 

23.  Exceptions  to  the  general  rule. 

2G.    Visible  defects,  and  sale  by  inspection. 

Section  II. — words   necessary  to  a  warranty. 

Section  III. — what  is  a  breach  of  warranty. 

Section  IV. — sale  by  sample. 

Section  V. — sale  of  provisions. 

Section  VI. — what   is  necessary    to  sustain    a    suit    or 
defence  upon  a  warranty,  or  to  rescind  a  sale. 

Section  VII. — form  of    action  and    manner  of    pleadino 

IN    SUITS    upon    warranty. 


Seel.    I.]  GENERAL    PRINCIPLES,    &C.  223 

Section  VIII. — evidence  in  case  of  warranty. 

Section  IX. — damages  in  case  of  warranty. 

SectiOxM  X. — warranty  or  title. 


Section  I. — general  principles  relating  to  warranty  of 

chattels,  in    RESPBCT    to    QUALITY. 

1.  The  following  general  principles  have  been  laid  down  up- 
on the  subject  of  the  warranty  of  chattels. 

2.  By  the  civil  law,  every  man  is  bound  to  warrant  the  thing 
that  he  selleth,  albeit  there  is  no  express  warranty  ;*  but  the 
comvion  Imo  bindeth  him  not,  unless  there  is  a  warranty  in  deed 
or  law. (I) 

3.  By  the  civil  Imo,  in  case  of  sale,  if  there  is  any  error,  either 
as  to  the  substance  of  the  thing  sold,  or  any  of  its  essential  qual- 
ities, without  which  it  would  not  be  the  thing  which  it  purports 
to  be  ;  the  sale  is  void.  As  where  metal  is  sold  for  silver  bul- 
lion, which  proves  to  be  gold  or  brass  ;  or  where  plated  are  sold 
for  silver  candlesticks.  But  by  the  common  law  the  sale  is 
valid  under  similar  circumstances,  unless  the  article  was  so  sit- 
uated that  it  could  not  be  seen  and  examined.  By  the  civil  law, 
moreover,  there  is  an  implied  warranty,  not  only  that  the 
thing  sold  is  free  from  defects  which  render  it  unfit  for  its  intend- 
ed purpose,  but  also  from  those  which  reduce  its  value  below  that 
of  a  sound  article.  In  the  former  case,  the  vendee  may  return 
the  thing  sold,  and  rescind  ihe  sale  by  a  redhibitory  action  to 
recover  the  price ;  while  in  the  latter,  he  might  sustain  an  actio 
cstimatoria  for  the  difference   in  value  between  the  article  sold 

(1)  Co.  Liu.  102  a. 


*  The  rule  of  ihe  civil  law  is,  caveat  venditor,  and  the  seller  is  liable  for  any  la- 
tent defect.  Chancellor  Kent  remarks,  that  if  it  were  res  Integra,  he  should  be  over- 
come by  the  reasoning  of  the  civilians.  Dig.  lib.  1,  tit.  2,  ch.  13,  n.  1.  18  Wend. 
453.     2  Caines,  55- 


224  WARRANTY.  [Chap.  IX. 

and  a  sound  article  of  the  same  kind.  In  either  of  the  above 
cases,  the  vendor  may  clear  himself  from  all  liability  by  an 
express  stipulation  to  that  effect,  unless  he  is  chargeable  with 
knowledge  and  concealment  of  the  defect. (I) 

4.  By  the  common  law,  where,  upon  the  sale  of  chattels,  there 
is  neither  warranty  nor  fraud,  the  vendee  purchases  at  his  peril, 
and  can  maintain  no  action  for  a  defect  of  quality. (2)  But,  it  is 
said,  this  principle  applies,  only  where  the  property  is  exhibit- 
ed.(3)  Also,  that  the  only  exception  to  it  is  where  an  ex- 
amination at  the  sale  is  morally  impossible  ;  as  where  goods  are 
sold  before  they  arrive  or  are  landed.  Mere  difficulty  of  exam- 
ining is  not  sufficient. (4) 

.5.  The  law  requires  truth  and  good  faith  in  dealings,  and 
these  forbid  a  false  representation,  made  knowingly,  or  the  con- 
cealment of  material  facts  exclusively  known  to  the  party  who 
conceals  them.  But  where  both  parties  know  or  might  dis- 
cover the  facts,  and  there  is  no  misrepresentation,  the  law 
provides  no  remedy.  And  fraud  must  be  proved,  not  presum- 
ed.(5)* 

6.  If  a  man  sell  wine  that  is  corrupted,  or  a  horse  that  is  dis- 
eased, and  no  warranty;  it  is  at  the  buyer's  peril,  and  his  eyes 
and  taste  ought  to  be  his  judges  in  that  case.  (6) 

7.  The  law  presumes  every  dealer  in  articles  brought  to  mar- 
ket to  know  all  the  circumstances  usually  attendant  on  suchcar- 

(1)  Poih.  on  Obligees,  No.  18.  Polh.  Con.  of  Sale,  No.  34.  Seixas  v.  Wood,  2 
Caines,  48.  Sweet  v.  Colgate,  20  John.  196.  Voct.  on  the  Pand.  b.  21.  lit.  1.  s.  4, 
5.     Poth.  Cont.  of  Sale,  No.  182.  .  18  Wend.  432,  3 

(2)  4  Conn.  428.  Seixas  v.  Wood,  2  Caines,  48.  Perry  v.  Aaron,  1  John.  120. 
Defreeze  v.  Trumper,  1  John.  274. 

(3)  Sands  v.  Taylor,  5  John.  404. 

(4)  Hyatt  v.  Boyle,  5  Gill.  &  J.  110. 

(5)  Junkins  v.  Simpson,  2  Shepl.  367. 

(6)  Fitzh.  N.  B.  94  C. 

*  If  a  party  makes  a  contract  with  another,  whom  he  knows  to  be  laboring  under 
a  delusion  materially  affecting  the  contract,  and  suffers  him  to  be  operated  upon  by 
that  delusion,  the  contract  is  void.  Hill  v.  Gray,  1  Star.  434.  So,  if  the  seller  prac- 
tice any  intentional  deception  to  disguise  latent  defects ;  this  is  a  fraud  for  which  he 
is  liable  to  an  action.  Schneider  v.  Heath,  3  Camp.  506.  The  rule  of  caveat  emp- 
tor is  said  to  have  been  adopted  in  Massachusetts,  Pennsylvania  and  New  York.  Yelv. 
(Metcalf 's)  21  b. 


Sect.    I.]  CENKTJAL    PRINCIPLES,    &C,  225 

goes.     Hence  the  ignorance  of  a  purchaser  upon  this  subject  is 
no  ground  for  a  refusal  to  accept  the  article  sold.(l)* 

8.  A  guaranty  of  the  quantity  of  a  cargo  sold,  is  not  a  war- 
ranty that  the  whole  is  sound. (2) 

9.  A  fair,  merchantable  price  does  not  raise  an  implied  war- 
ranty ;  and,  if  there  be  no  warranty,  and  the  vendor  sell  the 
thing  for  such  as  he  believes  it  to  be,  without  fraud,  he  is  not  lia- 
ble for  a  latent  defect.(3)t 

10.  A  sale  for  a  sound  price,  without  fraud  or  express  war- 
ranty, does  not  raise  an  implied  warranty,  that  the  article  is  mer' 
chantable;  nor  is  the  vendor  liable,  though  it  be  not  fit  for  all 
the  purposes  to  which  it  is  usually  applied. 

11.  Thus  the  defendant  sold  to  the  plaintiff  a  quantity  of  flour 
made  of  grown  wheat,  and  therefore  unfit  for  ordinary  bread, 
and  unprofitable  for  making  starch.  The  flour  was  sold  as  E. 
S.  B.  flour,  meaning  E.  S.  Beach's  brand,  and  it  was  really, 
according  to  the  weight  of  the  testimony,  of  this  description. 
The  flour  was  also  merchantable  and  fit  to  be  used  for  some  pur- 
poses, being  good  for  hard  or  ship  bread,  and  more  than  usually 
valuable  to  make  paste  for  paper  hangers.  Some  witnesses  how- 
ever thought  that  it  was  not  merchantable,  nor  good  for  any 
purpose.  The  plaintiff"  was  a  manufacturer  of  starch,  and  had 
several  times  purchased  flour  of  the  defendant  to  be  used  for 
this  purpose,  but  there  was   no  evidence  that  he  did   so  in   the 


(1)  Sands  V.  Taylor,  5  John.  405. 

(2)  Jones  v.  Murray,  3  Monr.  84. 

(3)  Parkinson  V.  Lee,  2  E.  314.  (Co.  Liu.  102  a.  Cro.  Jac.  197.  Si.'.  146. 
Yelv.  21.  2  Ld.  Ray.  1121.  Oneida,  &c.  v.  Lawrence,  4  Cow.  440.  Doug.  20. 
Alleyn,  91  ace.) 


*  So  on  the  other  l)and,  it  has  been  held,  that  a  vendee  is  not  bound  to  answer  in- 
nuiries  of  the  vendor  as  to  the  s.a^e  of  the  market.     BIydenburg  v.  Welsh,  Bald.  331. 

t  It  was  formerly  the  doctrine  in  Connecticut,  that  warranty  is  implied  merely  from 
a  price  And  this  principle  was  sanctioned  by  Judge  Swift  in  his  treatise,  though  he 
states  the  rule  as  ditferent  in  England.  And  it  is  slated  to  be  now  the  law  m  Con- 
necticut North  Carolina  and  South  Carolina,  that  a  sound  price  implies  warranty. 
Bailey  v.  Nichols,  2  Root,  407.  1  Swift's  Dig.  384,  5.  Timrod  v.  Shoolbred,  1  Bay, 
324.  2.  380.     Galbraith  v.  Wythe,  1  Hayw.  464,  Yelv.  (Me(calf's)  21  b. 

29 


226  WARRANTY.  [Chap.  IX. 

present  instance.     Held,  the  defendant  was  not  liable,  as  upon 
an  implied  warranty. (1) 

12.  No  proof  of  a  warranty,  that  each  piece  of  goods  sold 
shall  be  of  a  certain  value,  arises  from  the  fact,  that  this  is  the 
price  at  which  the  vendee  was  to  take  the  property.  If  so,  war- 
ranty would  be  universal,  unless  there  were  a  stipulation  to  the 
contrary.  (3) 

13.  Upon  a  sale  of  hemp  in  bales,  there  is  no  implied  warran- 
ty that  the  interior  agrees  with  the  exterior.  If  there  is  fraud, 
the  vendor  is  not  liable,  unless  proved  to  be  privy  to  it.  (3) 

14.  The  vendee  of  hemp,  sold  in  bales,  opened  and  examined 
several  of  them,  and  had  the  power  of  doing  so  with  the  rest, 
but  did  not  open  them.  The  hemp  contained  in  the  bales  which 
were  not  opened,  did  not  correspond  with  that  in  those  which 
were  opened.  The  interior  was  not  only  different  from  the  ex- 
terior, but  contained  a  large  quantity  of  toio.  The  vendee  open- 
ed and  worked  some  of  the  bales,  and  offered  to  return  the 
rest.  The  price  paid  was  $210  per  ton,  but  the  real  value  only 
$150.  A  letter  accompanying  the  invoice  spoke  of  the  first 
quality  hemp,  the  same  as  sold  to  you.  The  vendor  also  repre- 
sented it  to  others  to  whom  it  was  offered  for  sale,,  as  first  qual- 
ity. But  he  also  told  the  vendee  that  he  must  examine  well  for 
himself.  The  vendee  disavowed  charging  the  vendor  w\ih  fraud, 
but  brought  an  action  against  him,  alleging  both  deceit  and  a 
warranty.  Held,  this  was  not  a  sale  by  sample,  nor  was  there 
an  implied  warranty.(4)     (See  s.  4.) 

15.  Where  a  slave  is  sold  for  a  sum  of  money  which  is  a 
sound  and  full  price  for  a  good  and  honest  slave,  and  he  proves 
to  be  bad  and  dishonest,  which  the  vendor  knew  ;  no  action  lies 
for  a  fraudulent  concealment.  But  where  the  vendor  gave  a  re- 
ceipt "  in  full  payment"  for  a  slave,  and  warranted  him  sound 
in  body  and  mind,  and  a  slave  for  life,  and  also  gave  an  order 
upon  the  sheriff,  who  had  him  in   custody  to  give  him  up,  and, 

(1)  Wright  V.  Halt,  18  Wend. 449.     Hart  v.  Wright,  17  lb.  287.     Dean  v  Mason 
4  Conn.  428.  ' 

(2)  Snell  V.  Moses,  1  John.  96. 

(3)  Salisbury  v.  Stainer,  19  Wend.  159. 

(4)  lb. 


Sect.    I  j  GENERAL    PRINCIPLES,    &C.  227 

on  arrival  at  the  gaol,  it  was  found  that  the  slave  had  cut  his 
throat,  and  he  soon  died  ;  in  a  suit  to  recover  back  the  price, 
held,  the  intention  of  the  parties  was,  that  the  slave  should  be 
delivered;  the  agreement  was  for  a  living  and  sound  slave,  and, 
if  he  had  cut  his  throat  before  the  contract  was  made,  the  action 
was  maintained  (1)* 

16.  The  law  appears  to  be  well  settled,  that  a  false  assertion 
by  the  vendor,  as  to  the  value  of  the  property  sold,  or  the  amount 
of  future  income  from  it,  where  there  is  neither  a  warranty  as 
to  the  value,  nor  a  misrepresentation  of  any  fact  respecting  the 
property,  which  is  not  mere  matter  of  opinion,  forms  no  sub- 
stantive ground  for  relief  in  law  or  equity.  A  naked  assertion 
as  to  value  does  not  imply  knowledge,  but  must  be  understood 
by  the  vendee  as  mere  matter  of  judgment  or  opinion;  and  the 
vendee  is  as  competent  to  form  a  judgment  as  the  vendor. 
Where  a  fact  is  equally  known  to  both  parties,  the  law  presumes 
that  each  relies  on  his  own  judgment.  The  circumstance  of 
the  vendor's  having  offered  the  property  for  less  than  the  price 
obtained,  perhaps  implies  that  he  does  not  think  it  worth  this 
price.  But  where  no  inquiry  is  made  about  such  offer,  he  is 
not  bound  to  disclose  it.(2)t     (See  s.  26.) 

(1)  Fleming  v.  Slocum,  18  John.  403.    Franklin  v.  Long,  7  Gill  &  J.  407. 

(2)  Speigleramyer  v.  Crawford,  6  Paige,  254.     Sims  v.  Klein,  Breeze,  234. 


*  Parol  proof  was  held  inadmissible,  of  an  agreement,  prior  to  the  receipt,  to  pur- 
chase at  the  sum  therein  named,  and  ihat  the  vendor  agreed,  on  payment,  to  deliver 
the  slave. 

t  Where  the  vendor  of  a  farm  falsely  says  that  a  certain  person  would  have  given 
a  certain  price  for  it,  this  is  no  foundation  for  an  action  by  the  vendee.  It  is  mere 
ground  of  eslimation,  upon  which  no  person  of  prudence  would  rely.  Otherwise, 
where  the  declaration  is,  that  the  property  pays  a  certain  rent.  Roberts  on  Frauds, 
623.  The  action  of  Harvey  v.  Young,  (Yelv.  21  a.)  was  an  action  on  the  case  for 
deceit  in  the  sale  of  a  term  for  years,  which  the  vendor  affirmed  to  be  worth  £150, 
but  which  proved  to  be  worth  only  £100.  A  distinction  was  taken  between  mere  af- 
firmation, as  in  this  case,  and  warranty;  but  no  decision  seems  to  have  been  made. 
This  distinction  was  afterwards  overruled  in  Pasley  v.  Freeman,  3  T.  R.  57.  The 
true  principle  is  stated  to  te,  that  where  an  affirmation  is  a  mere  assertion,  that  is, 
where  no  warranty  is  intended,  and  the  vendee  may  ju  Ige  for  himself,  as  in  case  of  a 
mere  opinion;  or  where  the  truth  may  be  known  by  the  exercise  of  common  pru- 
dence ;  no  action  lies.     Yclv.  (Metcalf 's)  21  a.  n. 


228  WARRANTY.  [Chap.  IX. 

17.  The  following  cases  illustrate  the  general  doctrines  above 
stated. 

18.  Where,  in  an  action  by  a  vendee,  the  declaration  alleged, 
in  the  breach,  that  the  defendant,  contriving  to  injure  the  plain- 
tiff, did  not  perforin  his  undertaking,  but  craftily  and  subtilly  de- 
ceived the  plaintiff,  in  selling  an  unsound  article,  but  contained 
no  substantive  allegation  of  fraud;  held,  evidence  of  fraud  was 
not  admissible  ;  that  the  breach  alone  averred  fraud,  the  body  of 
the  declaration  merely  stating  a  promise,  in  the  form  which  was 
anciently  always  used  in  assumpsit.  The  sale  was  o( deer-skins , 
which  proved  to  be  not  merchantable,  damaged,  worm-eaten, 
mildewed  and  rotten.  It  was  held  in  this  case,  that  there  was 
no  difference  in  principle  between  things  of  marketable  value, 
and  those  of  mere  fancy.(l) 

19.  Upon  a  sale  of  tobacco,  a  bill  of  parcels  was  given,  as  fol- 
lows— "  24  kegs  tobacco,  branded  (Parkin)  at  4  months,  weigh- 
ing, &c.  at  I3|  cents."  A,  the  vendor  received  the  tobacco  on 
commission,  and  guaranteed  the  sale.  The  purchase  took  place 
4t  A's  counting-room,  where  the  tobacco  was.  It  was  branded 
conformably  to  the  bill,  and  not  examined  by  either  party  be- 
fore or  at  the  time  of  sale.  The  price  was  that  of  merchantable 
tobacco,  and  the  brand  a  favorite  one,  varying  in  price  from  8 
to  13^  cents.  The  tobacco  proved  to  be  in  part  unsound,  none 
of  it  was  re-sold,  and  the  vendee  ofTered  to  return  the  bad  por- 
tion, and  pay  for  the  rest.  In  a  suit  brought  for  the  price,  held 
there  was  no  implied  warranty  of  quality,  but  the  vendor's  agree- 
ment was  fulfilled    by  the  brand. (2) 

20.  A  transferred  to  B  stock  in  a  turnpike  company,  which 
at  the  time  appeared  by  the  books  to  have  been  fully  paid  up  by 
a  credit  of  interest  on  the  amount  before  paid  in,  according  to 
a  resolution  of  the  directors.  This  resolution  was  after  the 
above  transfer  repealed,  and  the  stockholders  were  called  upon 
to  pay  in  the  amount  before  allowed  for  interest.  B  accordingly 
paid  in  the  amount  to  the  company  on  the  shares  transferred  to 
him,  and  brings  an  action   against  A  to   recover   that  amourit, 


(1)  Dean  v.  Mason,  4  Conn.  428. 
(?)  Hyall  V.  Boyle,  5  Gill  &  .1.  110, 


Sect.    I.]  GENERAL    PRINCIPLES,    &.C.  229 

Held,  the  suit  could  not  be  maintained,  as  there  was  neither 
fraud  nor  warranty.  The  receipt  given  by  A  to  B  for  the  mo- 
ney, was  fairly  to  be  understood  as  stating  that  thirty-five  dol- 
lars had  been  paid  upon  each  share.  But  B  knew  in  what 
manner  it  was  paid,  before  he  bought.  He  was  not  misled  as 
to  the  facts.  And  A  was  not  to  be  held  chargeable  with  any 
subsequent  risk.(l) 

21.  In  an  action  of  assumpsit,  the  declaration  alleged,  that 
the  defendant  agreed  to  sell  and  deliver  to  the  plaintiff  eighty- 
nine  casks  of  lime,  of  good  quality,  but  that  he  delivered  that 
number  of  casks,  which  were  unmerchantable  and  of  little  val- 
ue. There  was  also  a  count  for  money  had  and  received.  The 
casks  were  proved  to  contain  a  mixture  of  sand  and  stones, 
which  was  of  no  value  and  could  not  be  used  as  lime;  but  there 
was  no  warranty,  nor  any  evidence  of  knowledge  on  the  part  of 
the  defendant.  He  was  master  of  a  coaster,  and  received  the 
casks  of  one  A  at  Thomastown,  to  carry  on  freight  to  Boston, 
and  there  sell  them  on  A's  account;  but  made  no  disclosure  of 
his  being  an  agent.  The  plaintiff  sold  some  of  the  casks,  and 
did  not  return  the  rest.  A  bill  of  parcels  was  given  of  eighty- 
nine  casks  of  lime,  at  ten  sTiillings  yer  cask  ;  and  the  casks  were 
branded  by  an  inspector  of  lime.  Held,  no  action  could  be 
sustained  upon  the  first  count ;  nor  would  money  had  and  re- 
ceived lie,  because  the  casks  were  of  some  value  and  not  re- 
turned. But  the  Court  suggested  that  a  new  declaration  might 
be  filed,  upon  which  the  plaintiff  might  recover. (2) 

22.  The  defendants  requested  the  plaintifis  to  exchange  a 
quantity  of  Burgundy  wine,  which  about  a  year  before  the^ad 
bought  from  the  plaintiffs,  for  a  quantity  of  Champagne  wine. 
The  plaintiffs  consented,  and  the  exchange  took  place.  When 
received  by  the  defendants,  the  Burgundy  was  of  the  first  qual- 
ity; but  when  returned  to  the  plaintiffs  it  was  sour  and  fit  only 
for  vinegar.  The  defendants  neither  made  any  representation, 
nor  were  guilty  of  any  fraud,  in  relation  to  the  wine  returned. 
Held,  the   plaintiffs  could  not  maintain    an  action  for  the   value 

(1)  CuNiiiiigliain  v.  Speer,  13  John.  392. 
(1)  Conner  v.  Henderbon,  15  Mass.  319. 


230  WAURANTY.  [Chap.  IX. 

of  the  Champagne,  or  to  recover  damages  for  the  bad  quality  of 
the  Burgundy. (1) 

23.  The  exceptions,  if  any,  to  the  common  law  rule  as  to 
warranty,  are,  that  if  a  manufacturer  sell  his  own  articles,  or- 
dered for  a  particular  use,  there  is  an  implied  warranty  that 
they  are  fit  for  such  use ;  in  the  sale  of  provisions  for  domestic 
consumption,  that  they  are  not  unwholesome  and  deleterious  ; 
and  in  case  of  an  order  for  a  certain  kind  or  quality  of  goods, 
that  those  furnished  are  of  such  kind.  Some  judges  in  recent 
English  cases  have  gone  thus  far,  and  even  further;  holding  to 
an  implied  warranty  that  the  thing  is  merchantable  or  fit  for 
some  purpose.  But  Chancellor  Kent  thinks  this  is  not  the 
common  law  or  law  of  New  York.  Perhaps  if  the  article  is  of 
no  value  either  to  the  vendor  or  the  vendee,  this  would  be  a 
good  defence  to  a  suit  for  the  price  ;  not  however  on  the  ground 
of  warranty,  but  a  failure  of  consideration. (2) 

24.  It  has  been  held,  that  under  an  agreement  to  furnish 
manufactured  goods,  however  low  the  price,  the  articles  must 
be  merchantable.  Thus  where  a  publican  agreed  with  a  brewer 
to  take  all  his  beer  of  him,  held,  the  latter  was  bound  to  supply 
him  with  beer  of  a  fair,  merchantable  quality.(3) 

25.  The  principle  is  elsewhere  laid  down,  that  where  a  ven- 
dor of  manufactured  articles  is  himself  the  workman,  there  is 
an  implied  warranty  that  they  are  executed  in  workmanlike 
manner.     Otherwise,  if  he  is  the  seller  only. (4) 

26.  A  warranty  does  not  apply  to  defects  which  are  visible. 
Thus  where  a  negro  was  sold,  having  a  defect  in  his  left  arm, 
whieli  made  it  thin  and  crooked,  and  was  plainly  visible,  and 
which  the  vendor  offered  to  exhibit;  held,  he  was  not  liable 
upon  the  warranty. (5)*     But  it  is  fraud   to  sell,  a  horse   nearly 

( 1)  La  Neuville  v.  Nourse,  3  Camp.  351. 

(2)  Per  Walworth,  CliV.,  18  Wend.  453,  4. 

(3)  Laiiig  V.  FiJgcon,  6  Taun.  108.  Holcombe  v.  Hewson,  2  Cam|).  391.  3  lb. 
286. 

(4)  Cousens  v.  Paddon,  2  Cromp.  M.  &  R.  550. 

(5)  Schuyler  v.  Russ,  2  Caines,  202. 


*  So  a  warranty  of  land  does  not  cover  ■patent  defects.  But  if  these  are  indus- 
triously concealed  by  the  vendor,  Equity  will  not  decree  specific  performance.  10 
Ves.  505.     1  Bro.  440. 


Sect.    I.]  GENERAL    PRINCIPLES,    &C.  231 

blind,  for  a  sound  price,  knowing  and  not  declaring  his  blind- 
ness ;  though  the  purchaser  examined  the  horse  ;  it  appearing 
that  the  defect  could  not  be  discerned  at  first  vie\v.(l) 

27.  Where  one  purchases  an  article  on  inspection,  and  the 
vendor  affirms  that  it  is  worth  much  more  than  the  real  value, 
no  action  lies  for  such  affirmation,  as  there  is  neither  fraud  nor 
a  warranty.  In  this  case,  the  vendor  represented,  that  he  had 
been  often  offered  fifty  dollars  for  the  article,  when  in  fact  it 
was  worth  but  twenty-five.  The  vendee  merely  saw,  and  nei- 
ther examined  nor  tried  it.  Held,  he  could  not  maintain  an  ac- 
tion of  deceit.(2)     (See  Supra,  16.) 

28.  The  principle,  that  a  vendor  is  not  answerable  for  defects 
in  the  thing  sold  without  warranty,  has  been  extended  so  far,  as 
to  enable  him  to  recover  in  an  action  against  the  vendee,  the 
apparent  value  of  the  article  at  the  time  of  sale,  though  no 
price  was  expressly  agreed  upon.  Thus  where  A  sold  B  a  bow- 
sprit, apparently  sound,  but  which  after  being  used  proved  to  be 
rotten ;  held,  A  might  recover  the  apparent  value  of  the  article 
at  the  time  of  sale.(3)* 


Section  II. — words  necessary  to  a    warranty. 

1.  The  word  icarrant,  or  any  other  particular  phraseology,  is 
not  necessary  to  constitute  a  warranty. 

m 

(1)  Hughes  V.  Robertson,  1  Monr.  216.  ^ 

(2)  Davis  V.  Meeker,  5  John.  354. 

(3)  Bluett  V.  Osborn,  1  Star.  384. 


*  The  principles  above  stated  may  be  considered  as  embodying  tlie  general  law,  on 
the  subject  of  the  warranty  of  chattels.  It  will  be  observed,  however,  that  they  are 
somewhat  loose  and  unsettled  ;  and  it  has  been  said  with  some  truth,  tha't  ihe  deci- 
sions relating  to  warranty  are  anomalous,  and  no  precise  principle  is  to  be  extracted 
from  them.  By  the  civil  law  (see  supra,  1,)  a  sound  price  warrants  a  sound  article. 
The  common  law  Courts  started  with  the  rule,  that  the  maxim  caveat  emptor,  dispos- 
es of  all  but  warranty  of  title  and  wilful  misrepresentation  ;  and  that  the  form  of  ac- 
tion must  be""  ex  delicto."  But  it  was  subsequently  held,  that  the  vendor's  recom- 
mendation, though  not  itself  a  warranty,  is  evidence  of  one.  Per  Gibson,  Ch.  J., 
Law  Reporter,  Feb.  1840,  p.  301. 


232  WARRANTY.  [Chap.  IX. 

2.  A  representation  of  the  state  of  the  thing  sold,  or  a  direct 
and  express  affirmation  of  its  quality  and  condition,  showing  an 
intention  to  warrant,  and  so  understood  and  relied  upon,  in- 
stead of  the  mere  expression  of  an  opinion  ;  is  a  sufficient  war- 
ranty. But  the  subject  should  be  within  the  particular  know- 
ledge of  the  vendor.  The  question  is  for  the  jury,  under  the 
advice  of  the  Court.(l)* 

3.  The  words  "  I  promise  you  the  horse  is  sound,"  it  seems, 
are  a  warranty  of  soundness. (2) 

4.  Advertisement  of  good  Caraccas  coffee.  The  plaintiff  pur- 
chased a  quantity  of  the  article,  and  after  examination,  shipped 
it  to  Spain,  not  knowing,  however,  the  difference,  between  this 
and  other  kinds  of  coffee.  The  coffee  was  in  fact  the  growth 
of  some  other  place  than  Caraccas.  Held,  the  advertisement 
was  equivalent  to  a  warranty  that  the  article  was  of  the  kind 
described. (3) 

5.  A  sold  a  slave  to  B,  and  gave  the  following  writing,  "  I 
state  that  I  have  sold  her  as  a  sound  and  healthy  negro."  Held, 
this  was  a  warranty,  being  an  agreement  for  soundness,  and 
something  more  than  a  mere  affirmation. (4) 

6.  The  vendor  of  a  horse  declared  that  it  was  not  lame  and 
that  "  he  would  not  be  afraid  to  warrant  it."  Held,  this  amount- 
ed to  a  warranty. (5) 

7.  The  plaintiff,  purchasing  a  mare  of  the  defendant,  said, 
"she  is  sound,  of  course."  "Yes,  to  the  best  of  my  know- 
ledge." "  Will  you  warrant  her  1"  "  I  never  warrant — I 
would  not  even  warrant   myself."     Held,  this   was  an  express 

m 

{\)  Chapman  v.  (Murch,qu.)  19  John.  290.  Oneida,  &c.  v.  Lawrence,  4  Cow. 
440.     2Caines,  56.     Peake  on  Evi.22S.     10  Wend.  411.     But  see  Dyer,  75. 

(2)  Chapman  v.  Murch,  19  John.  290. 

(3)  Bradford  v.  Manly,  13  Mass.  145, N.  P. 

(4)  Vanada  v.  Helm, 2  J.  J.  Marsh.  129. 

(5)  Cook  V.  Moseley,  13  Wend.  277. 

*  The  case  of  a  mere  judgment  or  opinion  in  regard  to  a  thing  sold  is  said  not  to 
be  analogous  to  the  description  in  a  policy  of  insurance  of  a  ship  as  neuti'al  or  Amer- 
ican. The  policy  is  a  special  contract,  in  which  the  whole  agreement  is  precisely 
stated.  No  question  is  ever  made,  but  that  the  assured  knew  and  meant  to  be  under- 
stood to  mean  that  the  ship  was  of  that  character.    2  Caines,  56.    See  s.  1,  16. 


Sect.    II.]  AVORD3    NECESSARY    TO    A    WARRANTY.  233 

warranty,  being   a   representation   made   by  the  vendor   at  the 
sale.(l) 

8.  The  defendant  gave  a  bill  of  sale  of  a  female  negro,  con- 
taining the  clauses  "  grant,  bargain  and  sell,"  "  covenant  to 
warrant  and  defend,"  and  "  being  of  sound  wind  and  limb  and 
free  from  all  disease."  Held,  this  was  not  mere  description, 
but  the  averment  of  a  fact,  amounting  to  an  express  covenant 
or  warranty  of  soundness  ;  and  that  the  fact  of  the  negro's  be- 
ing subject  to  fits  was  a  breach  of  such  warranty. (2) 

9.  The  defendant  agreed  to  sell  the  plaintiff  "  Scott  &  Go's 
75  barrels  mess  pork  at  53s.  per  barrel."  It  was  proved  that 
mess  pork  cured  by  Scott  &l  Co.  brought  2s.  6d.  more  than  any 
other  kind  ;  and  witnesses,  connected  with  the  trade,  were  al- 
lowed to  testify  to  the  proper  construction  of  tlie  contract. 
Held,  the  contract  imported  a  warranty  that  the  pork  was  cui-ed, 
not  merely  consigned,  by  Scott  &  Co.  ;  and  that  the  above  tes- 
timony was  rightly  admitted.  The  plaintiff  relied,  for  the  quali- 
ty of  the  article,  upon  the  character  of  the  persons  mentioned. 
The  case  is  like  that  of  the  picture  of  a  particular  artist,  which 
must  have  been  painted  by  him,  not  merely  have  hung  in  his 
studio.  The  declaration  in  this  case  alleged,  that  the  pork  was 
not  of  the  kind  agreed  for,  but  of  an  inferior  kind,  and  not  the 
pork  of  Scott  &  Co.  Held,  this  was  sufficient,  without  alleg- 
ing the  legal  effect  of  the  contract,  as  importing  that  the  article 
should  be  manufactured  by  Scott  &  Co.  Held  also,  that  the 
measure  of  damages  was  the  difference  between  the  invoice 
price  and  the  amount  produced  by  re-sale. (3) 

10.  A  horse  was  sold  as  sound  in  all  respects,  except  h|||pig 
the  colt-distemper.  It  was  proved  that  the  horse  had  a  deflux- 
ion  from  the  nose;  but  the  vendor  assured  the  purchaser  that 
this  was  only  an  ordinary  distemper  to  which  colts  are  subject, 
and  had  continued  only  a  few  days.  It  was  further  proved,  that 
the  horse  had  shown  some  symptoms  of  this  disease  during  the 
whole  time — ten  or  twelve  months — that  the  vendor  had  owned 
him  ;  and  the  evidence  was  very  strong,  that  he  had  the  glan- 

(1)  Wood  V.  Smith,  4  Car.  &  P.  45. 

(2)  Cramer  v.  Bradshaw,  10  John.  484. 

(3)  Powell  V.  Horton,  3  Scott,  110. 

30 


234  WARRANTY.  [Chap.  IX. 

ders,  an  incurable  disorder.  It  was  also  proved  that  the  person 
of  whom  the  vendor  purchased,  passed  him  off  as  a  glandercd 
horse,  or  refused  to  say  that  he  was  not  such  ;  that  the  vendor 
was  informed  by  a  third  person  what  was  the  true  disease,  and 
said  himself  he  feared  it  was  or  would  be  worse  than  the  dis- 
temper. Held,  though  no  particular  form  of  words  is  necessa- 
ry to  a  warranty,  yet  the  naked  averment  of  a  fact  is  neither 
a  warranty  nor  evidence  of  one,  but  may  be  taken  into  conside- 
ration with  other  circumstances,  and  the  jury  must  infer  from 
the  whole  case,  that  the  vendor  actually,  not  constructively,  con- 
sented to  be  bound  for  the  truth  of  his  representation.  The 
question  is  for  the  jury.  It  was  further  held,  that  a  positive 
averment,  at  the  time,  of  a  material  fact,  cannot  be  taken  as 
part  or  parcel  of  the  contract. (I) 

11.  A  warranty  must  either  be  upon  the  sale,  and  one  of  its 
terms,  or,  if  subsequent,  it  must  be  express,  and  founded  upon 
some  new  consideration.  But  though  a  warranty  should  gene- 
rally take  place  at  the  time  of  sale,  yet  if  the  vendor  ofers  to 
toarrant  when  the  parties  are  first  in  treaty  ;  this  shall  be  held 
a  warranty,  though  the  sale  take  place  some  days  afterwards.(2) 

12.  And  a  mere  affirmation  will  be  more  especially  construed 
as  a  warranty,  where  this  construction  is  favored  by  the  pre- 
vious communication  between  the  parties.  Thus  where  the 
plaintiff  told  the  defendant,  upon  a  proposal  to  exchange  horses, 
that  he  would  not  thus  exchange,  unless  the  defendant  would 
warrant  his  horse  to  be  sound,  and  the  defendant  thereupon 
said,  "he  is  a  sound  horse  except  the  bunch  on  his  leg  ;"  held, 
thi*^as  a  warranty  of  soundness,  subject  to  the  exception  men- 
tioned.(3) 

13.  Contrary  to  the  tenor  of  the  above  decisions,  it  has  been 
said,  all  the  cases  of  an  affirmation's  being  an  implied  warranty 
relate  to  the  title  only,  not  to  the  quality  of  the  thing  sold. (4) 

14.  The  defendant  sold  to  the  plaintiff  a  horse,  "  to  be  taken 

(1)  M'Farland  v.  Newman,  Penn.  Sept.  1839,  Law  Reporter,  Feb.  1840,  p.  301. 

(2)  Hogins  V.  Plympton,  11  Pick.  100.    Wilmot  v.  Hurd,  II  Wend.  584.     Ly«ney 
V.  Selby,  Ld.  Ray.  1120. 

(S)  Roberts  v.  Morgan,  i  Cow.  4S8.     Whitney  v.  Sutton,  10  Wond .  41 1 . 
(4)  Per  Thompson,  J.,  Wilson  v.  Marsh,  1  John,  304. 


Sect.    II.]  WORDS    NECESSARY    TO    A    WARRANTY.  235 

as  he  is,  sound  or  unsound."  Held,  the  vendor  was  not  liable 
for  the  unsoundness  of  the  horse,  though  he  knew  and  conceal- 
ed it  at  the  time  of  sale.*  But  if,  in  connexion  with  the  ex- 
pression sound  or  unsound,  the  vendor  makes  any  misrepresen- 
tation, he  is  liable.  As  where  the  horse  was  thin  and  had  a 
bunch  upon  his  neck,  both  arising  from  disease,  and  the  ven- 
dor represented  that  the  thinness  was  caused  by  a  long  journey, 
and  the  bunch  by  bleeding;  held,  he  was  liable  to  an  action. (1) 

15.  Sale  of  a  ship,  rvith  all  faults.  There  were  latent  de- 
fects in  the  vessel,  known  to  the  vendor,  but  not  to  the  vendee, 
nor  discoverable  by  any  attention  on  his  part.  Held,  the  ven- 
dor was  liable  to  an  action. (2)  This  principle,  however,  has 
been  overruled  in  a  subsequent  case, (3)  except  where  there  is 
some  artifice  used  to  disguise ;  and  this  last  case  is  said  never 
to  have  been  questioned. (4)  The  same  rule  applies  to  the  sale 
of  a  horse.  In  case  of  a  sale  "  with  all  faults,"  the  contract  is 
not  avoided  by  any  misrepresentation  ignorantly  made  by  the 
vendor.  Otherwise,  if  he  state  what  he  knows  or  believes  to 
be  false.  But  this  expression  does  not  constitute  a  warranty 
against  such  faults  as  are  consistent  with  the  thing's  being  what 
it  is  described  to  be. (5) 

16.  The  distinction  has  been  taken  between  express  warran- 
ty and  mere  affirmation,  that  where  an  animal  sold  is  warranted 
sound,  no  knowledge  of  unsoundness  on  the  part  of  the  vendor 
is  necessary  to  charge  him.  Otherwise,  if  there  is  a  mere  rep' 
resentation,  or  a  warranty  "  as  far  as  he  knows." (6) 

17.  Where  the  vendor  refers  to  any  document,  or  to  his  be- 
lief only,  no  action  is  maintainable,  without  proof  that  he  Ijpew 
he  was  representing  a  falsehood.  Thus  if  the  vendor  of  a 
horse  refer  for  his  age  to  a  written  pedigree,  and  also  state  that 

(1)  West  V.  Anderson,  9  Conn.  107. 

(2)  Mellish  v.  Moltcaux,  Peake,  115. 

(S)   Baglehole  v.  Walters,  3  Camp.  154—6. 

(4)  Pickering  v.  Dowson,  4  Taun.  784. 

(5)  Long,  (Am.  Ed.)  207,8. 

(6)  Case  v.  Boughton,  11  Wend.  106. 

*  The  vendor  of  a  horse  is  liable  for  concealing  any  defect  in  him,  which  he  know*, 
though  he  use  no  art.     M'Cavock  v.  Ward,  Cooke,  403. 


236  WARRANTY.  [Chap.  IX. 

he  knows  nothing  about  it  except  from  this  source  ;  he  is  not 
liable,  though  the  pedigree  prove  untrue.  But  if  he  knew  it  to 
be  untrue,  he  would  be  liable,  although  he  had  expressly  de- 
clared that  he  would  not  warrant  it  to  be  true.(l) 

18.  Where  there  is  a  bill  of  sale,  or  a  written  agreement  re- 
specting a  sale,  no  action  can  be  maintained  upon  a  mere  parol 
warranty. (2)* 

19.  Bill  of  sale  of  a  ship.  In  an  action  by  the  vendee 
against  the  vendor,  the  plaintiff  offered  evidence  that  the  de- 
fendant, after  execution,  and  before  delivery  of  the  bill  of  sale, 
in  reply  to  a  question  put  by  the  plaintiff,  said,  in  substance, 
that  the  ship  was  completely  copper-fastened  ;  also  that  the  de- 
fendant advertised  her  as  composition  fastened,  complete  for 
coppering.  Held,  this  evidence  was  not  admissible,  to  support 
the  allegation  of  a  parol  warranty.  The  advertisement  might 
have  been  evidence  in  an  action  for  deceit. {S) 

20.  It  is  said,  there  is  an  implied  warranty,  that  the  thing 
sold  is  in  specie  that,  as  which  it  is  purchased. (4)  That  words 
of  description  constitute  a  warranty  that  the  thing  sold  is  of  the 
kind  and  quality  described. (5)  And  if  a  misdescription,  al- 
though not  made  fraudulently,  is  so  far  material,  that  it  proba- 
bly constituted  the  inducement  to  purchase  in  the  mind  of  the 
vendee;  it  avoids  the  contract. (G)  The  following  cases  illus- 
trate the  distinctions  which  have  been  made  upon  this  subject. 
It  will  be  seen,  that  the  above  general  principles  have  been 
adopted  with  much  qualification. 

21.  The  defendant  agreed  in  writing  to  ship  the  plaintiff  a 
quantity   of  "good  fine  wine;"  acknowledging  the  receipt  of 


(1)  Peake  on  Evi.  228.  Dun'.op  v.  Waugh,  Peake,  123.  Wood  v.  Smith,  6  M.  & 
R.  124. 

(2)  Mumford  v.  M'Phei-son,  1  John.  414.     Wilson  v.  Marsh,  lb.  503. 

(3)  Mumford  v.  M'Pherson,  1  John.  414. 

(4)  Borrekins  v.  Bevan,  3  Rawle,  23. 

(5)  Hoijins  V.  Plympton,  11  Pick.  100. 

(6)  Flight  V.  Booth,  1  Bing.  N.  C.  376. 

*  A  vendee  by  written  instrument  may  offer  parol  evidence  of  prior  misrepresen- 
tations to  prove  fraud;  as  that  the  seller  by  fraud  prevented  him  from  discovering  a 
defect  which  the  seller  knew  to  exist.     Lonp,  209. 


Sect.    II.]  WORDS    NECESSARY    TO    A    WARRANTY.  237 

payment  therefor.  Held,  this  instrument  did  not  constitute  a 
warranty  that  the  wine  was  of  any  particular  quality,  being  too 
indefinite  in  its  terms,  and  not  itself  the  contract  of  sale,  but  re- 
cognizing a  prior  sale  ;  and  that  the  defendant  might  prove  by 
parol  evidence  what  were  the  terms  of  such  sale,  and  the  plain- 
tiff's own  selection  of  the  wine.(r)* 

22.  The  defendant  sold  certain  wood  to  the  plaintiff,  who  al- 
so purchased  it  of  him,  as  hrazillctto.  A  fair  price  was  paid  for 
wood  of  this  description  ;  but  the  article  sold  proved  to  be  of  a 
different  quality  and  of  little  or  no  value.  The  agent  of  the 
plaintiff  saw  the  wood  when  it  was  unloaded  and  delivered,  and 
did  not  know  or  discover  that  it  differed  from  the  description  in 
the  bill  of  parcels  ;  nor  did  the  defendant,  who  was  a  mere  con- 
signee, know  of  the  difference.  Held,  the  plaintiff  could  not 
maintain  an  action  as  upon  a  warranty. (2) 

23.  Sale  of  a  jewel,  affirming  it  to  be  a  bezoar  stone,  when 
in  fact  it  was  not.  No  action  lies  against  the  vendor,  unless 
the  declaration  allege,  either  that  the  defendant  knew  this  fact, 
or  warranted  the  stone. (3)t 

24.  The  defendant  sold  to  the  plaintiff  certain  paints  for  good 
Spanish  brown  and  white  lead,  and  for  a  full  price.  The  paints 
proved  to  be  bad  and  of  no  value;  but  the  kegs  had  never  been 
opened  since  the  defendant  purchased  them.  Held,  the  defend- 
ant was  not  liable  to  an  action. (4) 

25.  The  plaintiff  sold  to  the  defendant  an  article  which  was 
invoiced,  advertised  and  purchased  as  barilla  and  the  sample  ex- 
hibited corresponded  with  the  bulk.  The  defendant  used  it  in 
the  manufacture  of  soap,  and  then  ascertained  that  it  was  not 
barilla,  but  Jcelp,  an  article  resembling  barilla,  kut  of  little  or  no 

(1)  Hogins  V.  Plympton,  11  Pick.  97. 

(2)  Seixas  v.  Woods,  2  Caines,  48. 

(3)  Chandelor  V.  Lopus,  Cro.  Jac.  4. 

(4)  Holden  v.  Dakin,  4  John.  421. 

*  Sale  of  furnip-seed,  wan-anting  it  to  be  "  good,  white,  round  turnip-seed,"  which 
the  seller  could  warrant.  Held,  a  binding  warranty.  Wood  v.  Smith,  5  M.  &  R. 
124.  Goods  were  entsred  in  an  invoice  as  "  scarlet  cuttings."  Held,  they  must  con- 
form to  this  known  mercantile  description.     Bridge  v.  Wain,  1  Star.  504. 

t  The  case  o^  the  bezoar  stone,  is  perhaps  not  law  now  in  England,  certainly  not 
in  this  country.     Bradford  v.  Manly,  13  Mass.  139. 


238  WARRANTY.  [Chap.  IX. 

value.  The  vendee  offered  to  pay  for  such  part  as  he  had  used 
and  return  the  remainder.  In  a  suit  brought  by  the  vendor  for 
the  price,  held,  there  was  no  warranty  but  a  mere  expression  of 
opinion,  and  the  action  would  not  lie.(l) 

2G.  The  defendant  gave  to  the  plaintiff  the  following  writing  ; 
"  sold  A  2000  gallons  prime  quality  winter  oil."  A  bill  of  par- 
cels was  also  given  subsequently.  Held,  the  contract  of  sale 
was  effected  by  the  former  instrument;  that  even  if  the  terms 
were  merely  terms  of  description,  they  constituted  a  material 
part  of  the  contract  and  a  warranty,  if  so  intended;  and  that  a 
declaration,  alleging  that  the  defendant  undertook  to  sell  "  a 
good  and  superior  quality,  to  wit,  prime  quality  winter  oil,"  was 
no  variance  from  the  agreement  proved. (2) 

27.  If  a  horse  is  sold  without  warranty  and  without  inquiry 
by  the  purchaser  ;  unsoundness,  restiveness  or  unfitness  for  use, 
is  no  ground  of  action  against  the  vendor  ;  because  the  law  pre- 
sumes that  a  proportionally  low  price  was  paid.  But  if  the  ven- 
dee apply  for  a  carriage-horse,  or  one  fit  to  carry  a  lady,  or  a 
timid  and  feeble  rider  ;  the  seller,  who  knows  the  qualities  of 
the  horse,  impliedly  warrants  that  the  animal  is  suitable  for  these 
purposes.  (3) 

28.  Printing  the  name  of  a  painter  opposite  that  of  a  picture 
in  a  catalogue  does  not  constitute  a  warranty  that  the  picture 
was  painted  by  this  artist.  (4) 


Section  III. — what  is  a  breach  of  warranty. 

1.  Sale  of  a  negro,  with  warranty  that  she  was  born  a  slave, 
and  against  all  who  should  claim  her  as  such.  Held,  a  claim  to 
freedom  under  the  laws  of  another  state,  relating  to  the  impor- 
tation of  slaves,  was  no  breach  of  warranty.  (5) 

2.  Where  a  slave  is  warranted  sound,  and  is  proved  to  be 

(1)  Sweet  V.  Colgate,  20  John.  196. 

(2)  Hastings  v.  Lovering,  2  Pick.  214. 

(3)  Long  (Am.  Ed.)  205,6. 

(4)  Jendwine  v.  Slade,  2  Esp.  572. 
(6)  Davis  V.  Sanfoid,  Lit.  Sol.  C.207. 


Sect.    III.]  WHAT    IS    A    BREACH    OF    WARRANTV.  239 

sound  at  the  sale,  but  unsound   at  delivery,  this  is  no  breach  of 
warranty. (1) 

3.  A  person  employed  to  sell  two  horses,  belonging  to  two 
different  persons  A  and  B,  sold  them  at  an  entire  price,  with  war- 
ranty. Held,  the  warranty  of  each  must  be  regarded  as  several, 
and  hence  the  vendee  could  not  maintain  assumpsit  against  A 
for  the  unsoundness  of  his  (A's)  horse,  declaring  as  upon  the 
sale  of  one  only.  If  the  other  horse  had  been  unsound,  this 
would  have  been  a  breach  of  warranty  ;  but  there  would  have 
been  no  pretence  for  charging  A. (2) 

4.  Where  a  horse  is  warranted  sound,  any  slight  disorder, 
not  likely  to  affect  his  permanent  value,  and  from  which  he  re- 
covers, is  no  breach  of  such  warranty  ;  as  for  instance,  a  cold, 
which  may  be  cured  with  ordinary  care,  so  as  not  to  be  liable  to 
return.  A  horse,  under  such  circumstances,  is  no  more  unsound 
than  a  man  would  be.  So  a  horse  could  not  be  called  lame,  if 
he  merely  had  a  thorn  in  his  foot,  upon  the  extraction  of  which 
he  would  no  longer  limp.  But  any  disease,  though  as  yet  in  its 
early  stage,  which  is  permanently  injurious  to  the  constitution, 
and  of  a  nature  to  render  probable  future  attacks  of  the  same 
kind,  is  a  breach  of  such  warranty.  If  a  horse  be  warranted 
perfect,  and  want  either  a  tail  or  an  ear,  the  vendor  is  not  lia- 
ble, unless  the  vendee  is  blind ;  because  the  defect  is  one  plain- 
ly obvious  to  the  senses.*  But  if  a  horse  be  warranted  sound, 
and  want  the  sight  of  an  eye,  the  vendor  is  liable,  because  the 
discernment  of  such  defect  is  often  a  matter  of  skill.  So  if  a 
horse  having  a  visible  splint  is  sold  with  warranty,  the  vendor 
is  liable  in  case  be  becomes  subsequently  lame  from  this 
cause. (3)t 

(1)  Price  V.  Barr,  Lit.  Sel.  C.  217. 

(2)  Symonds  v.  Carr,  1  Camp.  361. 

(3)  Bolden  v.  Brogden,  2  Moo.  &  R.  113.  3  Bl.  Comm.  165.  Butterfield  v.  Bur- 
roughs, 1  Salk.  211.  Margetson  v.  Wright,  5  M.  &  P.  606.  7  Bing.  603,  8.  467.  1 
M.  &  S.  622. 


*  But  a  vendor  of  cloth  will  be  liable  upon  a  warranty  that  it  is  of  a  certain  length  ; 
for  the  length  can  be  ascertained  only  by  measurement. 

t  The  doctrine  stated  by  Blackstone  (3  Comm.  166)  that  a  warranty  cannM  sx- 
lend  to  thingi  infuturo,  ai,  •.  g.  the  future  soondneBs  of  a  horse,  seems  to  be  unfound- 


240  WARRANTY.  [Chap.  IX. 

5.  Declaration  upon  a  contract  for  selling  to  the  defendant 
"a  certain  cargo  of  good  merchantable  Gallipoli  oil,  th^n  being 
the  cargo  of  the  vessel  F,  the  said  cargo  consisting  of  L  K  240 
casks  containing  901  salines  and  9  pignatelles  at  <£54  per  im 
perial  ton."  The  defendant  pleaded,  that  the  casks  containing 
the  oil  for  which  the  plaintiff  declared,  were  not  well  seasoned 
and  proper  to  contain  good  merchantable  Gallipoli  oil,  accord- 
ing to  the  terms  and  within  the  true  intent  of  the  agreement 
declared  on,  but  were  badly  seasoned,  and  unfit  and  improper 
to  contain  oil.  Held  a  bad  plea.  The  subject  matter  of  the 
contract  was  the  oil,  not  the  casks.  The  condition  of  the  lat- 
ter went  only  to  a  part  of  the  consideration.  No  other  defence 
could  be  made  to  the  action,  than  by  proving  the  oil  furnished 
to  be  not  good,  merchantable,  Gallipoli  oil.  If  it  were  other- 
wise, a  defect  in  a  single  cask,  or  even  the  slightest  defect 
would  be  sufficient  to  defeat  the  action.  The  case  would  be 
different,  if  the  article  itself  were  rendered  unmerchantable  by 
the  bad  condition  of  the  vessel  containing  it,  as  for  instance  in 
the  case  of  wine  badly  corked  ;  but  then  the  declaration  must 
specifically  allege  the  injurious  consequences.  This  plea  takes 
issue  on  what  is  merely  a  description  in  part  of  the  thing  con- 
tracted for.  The  contents  were  not  merely  accessory  to  the 
casks,  but  on  the  contrary,  the  latter  formed  no  part  of  the  con- 
tract, and   were  not  the   subject  of  warranty.     Even  if  all   the 

eJ  in  principle,  and  has  been  distinctly  overruled.    Doug.  735.    2  Bing.  183.     Long, 
203. 

Very  nice  questions  often  arise  as  to  what  constitutes  unsoundness  in  a  horse. 
The  habit  of  roaring  was  formerly  held  not  to  render  a  horse  unsound.  But  a  con- 
trary doctrine  was  held  in  a  later  case,  upon  the  testimony  of  a  skilful  person,  that 
this  habit  is  produced  by  a  narrowness  of  the  windpipe,  and  frequently  by  sore  throat 
or  inflammation,  and  unfits  the  animal  for  rapid  motion.  Crib-biting  is  not  unsound- 
ness. A  cough  is,  if  permanent.  So  the  strangle  or  mont  du  chien.  So  a  bone 
spavin  in  the  hock.  So  a  nerved  horse  is  unsound.  A  splint  is  not  one  of  those  pa- 
tent defects  which  are  excluded  from  the  warranty  of  soundness,  because  it  may  or 
may  not  produce  lameness.  Any  infirmity  which  renders  the  animal  less  fit  for  pre- 
sent service,  has  been  held  to  be  unsoundness.  Bassett  v.  CoUis,  2  Camp.  523.  On- 
slow v.  Eames,  2  Stark.  81.  Broennenburgh  v.  Haycock,  Holt,  630.  Dickenson  v. 
Fallett,  2  M.  &  R.  299.  Margetson  v.  Wright,  8  Bing.  454.  Shillitoe  v.  Claridge,  2 
Chit.  425.  Brown,  311.  Watson  v.  Denton,  7  C.  &  P.  85.  Best  v.  Osborne,  R.  & 
M.  290.    Elton  v.  Brogden,  4  Camp.  281. 


Sect.    IV.]  SAI.E    BY    SAMPLE.  241 

casks  were  defective,  and  a  small  leakage  from  each,  but  no  de- 
terioration of  the  bulk,  this  would  only  go  to  a  part  of  the  con^ 
sideration.  The  case  is  like  a  sale  of  bales  of  cotton,  where 
the  bales  merely  prove  to  be  unsound.  (1) 


Section  IV. — sale  by  sample, 

1.  A  sale  hy  sample  implies  a  warranty  that  the  bulk  shall 
correspond  with  the  sample. (2) 

2.  A  sale  by  sample  implies  warranty,  though  the  vendee  re- 
quire the  vendor  to  test  its  correctness  by  procuring  a  second 
sample. (3) 

3.  Whether  the  production  of  a  sample  is  a  warranty  that 
the  bulk  corresponds  therewith,  or  whether  the  sample  is  shown 
to  enable  the  vendee  to  judge  of  the  quality  of  the  article,  the 
vendor  is  bound  either  that  the  article  shall  equal  the  sample 
exhibited,  or  be  saleable  and  of  the  description  contracted 
for.(4) 

4.  Where  goods  are  sold  by  sample  for  a  certain  price,  and 
goods  of  an  inferior  quality  furnished,  the  vendor  can  recover 
only  the  real  value  of  them. (5) 

5.  The  words  pei'  sample  in  a  sale  note,  are  no  part  of  the 
description  of  the  thing  sold,  but  a  mere  collateral  agreement 
that  it  is  of  a  certain  quality,  the  breach  of  which  is  matter  of 
defence  to  an  action  by  the  vendor.  The  words  are  equivalent 
to  a  warranty,  that  the  article  conforms  to  a  small  parcel  which 
is  exhibited.  Hence,  in  an  action  for  the  price,  they  need  not 
be  set  forth  in  the   declaration. (6) 

6.  A  vendor   is  not  exempted   from  his  liability  upon  a  war-- 


(1)  Gower  V.  Von  Dadelszon,  4  Scott,  453. 

(2)  Oneida,  &c.  v.  Lawrence,  4  Cow.  440.     Andrews  v.  Kneeland,6  Cow.  354. 
Sands  V.  Taylof,  5  John.  404. 

(3)  Gallagher  v.  Waring,  9  Wend.  20. 

(4)  Oneida,  &c.  v.  Lawrence,  4  Cow.  440. 

(5)  Germaine  v.  Bmton,  3  Stark.  32. 

(6)  (Parker  v.  Palmer,  4  B.  &  A.  386,  qu.) 

31 


242  WARRANTY.  [Chap.  IX. 

ranty,  implied  from  the  exhibition  of  a  sample,  by  the  fact  that 
he  is  a  mere  agent,  and  generally  known  as  a  commission  mer- 
chant. To  set  up  this  defence,  he  ought  to  disclose  the  name 
of  his  principal. (1) 

7.  An  agent  or  broker,  with  power  to  sell  and  no  express  re- 
striction as  to  the  mode,  may  sell  by  sample  or  with  warranty, 
whether  the  principal  reside  abroad  or  in  the  same  city.  The 
latter  is  presumed  to  know  the  condition  of  the  goods,  and 
bound  to  send  a  fair  sample.  If  the  property  is  so  situated 
that  it  cannot  be  seen  in  bulk,  the  broker  is  allowed  to  sell  by 
sample  for  the  convenience  of  trade,  although  this  mode  be  not 
conformable  to  general  usage.  (2) 

8.  In  the  case  of  Waring  v.  Mason, (3)  Senator  Mack  expressed 
the  opinion,  that  the  doctrine  of  warranty  by  the  exhibition  of  a 
sample  is  not  applicable  to  the  sale  and  re-sale  of  products  or 
manufactured  articles  through  consignees  and  commission  mer- 
chants ;  that  in  the  absence  of  fraud,  the  rule  ought  not  to  ap- 
ply to  them  so  strictly,  as  to  the  grower  or  manufacturer  of  the 
article  sold.  To  the  same  purpose  Senator  Paige  remarked,  if 
an  article  is  purchased  from  the  manufacturer,  the  law  implies 
an  undertaking  similar  to  that  of  a  mechanic  who  contracts  to 
do  work  ;  viz.,  that  the  thing  shall  be  made  skilfully  or  in  a 
workmanlike  manner.  He  adds,  that  in  case  of  a  purchase  or 
agreement  to  purchase  without  opportunity  of  inspection,  as 
where  the  buyer  is  at  a  distance  from  the  place  of  contract ; 
the  agreement  may  be  considered  as  executory,  and  if  the  thing 
does  not  correspond  with  the  representation  made  by  the  vendor, 
the  purchaser  is  not  bound  to  receive  it.  But,  it  seems,  in  all 
cases,  where  the  vendee  has  opportunity  of  inspection,  and 
there  is  no  fraud  or  warranty,  although  a  sample  is  exhibited, 
the  maxim  caveat  emptor  applies.  To  this  rule  the  sale  of  cot- 
ion  is  not  an  exception.  Warranty  by  sample  is  an  innovation 
upon  the  common  law.  Senator  Paige  proceeds  to  examine  the 
numerous  and  somewhat  conflicting  decisions  upon  this  subject, 
and  deduces  a  result  favorable  to  his  own  doctrine  above-stated. 

(1)  Waring  V.  Mason,  18  Wend.  425. 

(2)  Andrews  v.  Kneeland,  6  Cow.  S54 

(3)  18  Wend.  436. 


Sect.  IV.}  SALE  BT  SAMPLE.  243 

9.  Parol  evidence  is  admissible  of  a  sale  by  sample,  though 
the  broker  through  whom  such  sale  was  effected  entered  it  in 
his  books  without  mentioning  it  as  such  ;  it  not  being  signed 
by  the  broker,  nor  any  bought  and  sold  note  deHvered  by  him  to 
either  party.(]) 

10.  But  where  goods  are  sold  by  a  written  contract,  which 
describes  their  quality,  without  reference  to  a  sample;  in  a 
suit  for  not  accepting  or  paying  for  the  goods,  the  vendor  will 
not  be  permitted  to  prove  that  they  corresponded  with  a  sample 
exhibited  at  the  time  to  the  vendee,  who  was  a  skilful  per- 
son.(2) 

11.  So,  where,  at  or  after  a  sale  of  goods,  a  specimen  is  ex- 
hibited to  the  purchaser,  but  the  written  agreement  of  sale  de- 
scribes them  as  of  a  particular  denomination  ;  this  is  not  a  sale 
by  saynple,  but  involves  an  implied  warranty  that  the  goods  are 
merchantable  and  of  the  denomination  mentioned.  (3) 

J2.  In  case  of  a  sale  by  sample,  to  which  the  goods  do  not 
conform,  the  vendee  is  not  bound  to  accept  and  pay  for  them, 
though  the  vendor  is  willing  to  allow  the  difference  of  value, 
and  though  under  such  circumstances  there  is  a  prevailing 
usage  for  the  vendee  to  accept  and  pay  for  the  goods. (4) 

13.  Sale  of  sugars  at  auction,  by  sample.  On  examination, 
the  bulk  was  found  different  in  color  from  the  sample,  and  less 
valuable.  The  seller  nevertheless  required  the  vendee  to  ac- 
cept the  sugars,  upon  the  ground  of  a  usage,  which  was  proved, 
for  purchasers  to  receive  an  article  sold  by  sample,  notwith- 
standing its  inferiority,  if  there  were  no  fraud,  upon  an  apprai- 
sal by  sworn  brokers.  The  sale  took  place  in  April.  The  su- 
gars had  been  landed  in  the  West  India  docks  in  the  November 
preceding,  at  which  time  the  samples  were  taken.  By  subse- 
quent exposure  to  the  air,  the  samples  had  grown  whiter,  which 
change  rendered  them  more  valuable  for  the  retail  trade,  though 
not  for  the  sugar  baker.  A  purchaser  at  auction  has  no  means 
of  knowing  at  what  time  samples  have  been  drawn,  being  in- 

(1 )  Waring  v.  Mason,  18  Wend.  425. 

(2)  Tye  V.  Finmore,  3  Camp.  462. 

(3)  Gardiner  v.  Gray,  4  Camp.  144. 

(4)  Hibbert  v.  Sliee,  1  Camp   113. 


244  WARRANTY.  [Chop.    IX. 

formed  merely  that  the  sugars  lie  in  the  docks.  Held,  under 
these  circumstances,  no  action  could  be  maintained  for  the 
price.(l) 

14.  Where  goods  sold  are  inferior  to  the  sample  which  was 
exhibited  to  the  purchaser,  the  latter  cannot  rely  upon  such 
inferiority,  without  returning  the  goods. (2) 

15.  The  defendant  agreed  to  purchase  of  the  plaintiff  a  quan- 
tity of  wheat.  The  bought  note  states,  that  "  the  corn  is  sold 
according  to  a  sample,  and  to  be  paid  for  in  bankers'  bills,  if 
required."  It  was  the  usage  of  the  market  to  sell  by  sample, 
subjept  to  the  purchaser's  inspection  and  approval  of  the  bulk 
of  the  property.  A  week  after  the  contract  was  made,  the  de- 
fendant applied  to  see  the  bulk.  The  plaintiff  replied,  that  he 
would  either  send  for  a  bushel  on  the  spot,  or  send  him  a  load 
the  next  day  for  inspection,  but  declined  showing  the  bulk,  be- 
cause it  was  in  another  warehouse,  and  he  did  not  like  to  let 
him  into  his  connexions.  Four  days  afterwards,  the  plaintiff  in- 
formed the  defendant  that  the  wheat  was  ready  for  him  on  pro- 
duction of  the  bankers'  bills.  The  price  of  wheat  having  in 
the  mean  time  fallen,  the  defendant  repudiated  the  contract. 
In  an  action  against  him  for  not  taking  the  wheat,  held,  the  de- 
fendant had  a  right  to  inspect  the  whole  quantity  at  any  proper 
and  convenient  time  after  the  contract,  and  as  the  plaintiff  did 
not  allow  such  irispection,  this  action  could  not  be  sustain- 
ed.(3) 

16.  The  defendant  called  upon  the  plaintiff  at  his  store,  with 
a  sample  of  cloves  in  a  paper,  and  asked  him  if  he  wished  to 
purchase  the  article.  A  witness,  who  was  present,  examined 
the  sample  and  found  it  to  be  of  the  best  Cayenne  cloves.  The 
defendant  subsequently  said,  that  it  was  a  sample  oi  fair  cloves 
A  bill  of  parcels  was  given,  of  cloves,  generally,  and  the  same 
day  the  casks  of  cloves  purchased  were  removed  to  the  store  of 
the  plaintiff.  The  price  was  that  of  the  best  quality  of  cloves. 
The  sample  exhibited  was  not  taken  from  the  casks,  but  out  of 
an  open  barrel,  from  which  the  casks,  not  being  full,  were  filled 

(1)  Hibbert  v.  Shee,  1  Camp.  113. 

(2)  Grimaldi  v.  White,  4  Esp.  95- 

(3)  Loritn»r  v.  Smith,  2  D.  &  R.  33 


Sect.  IV.]  SALE  BY  SAMPLE.  245 

up ;  but  the  defendant  did  not  know  this  fact.     Immediately  af- 
ter the  sale  the  market  price  fell,  and  the  plaintiff  made  no  at- 
tempt to  sell  the  cloves.     Sixteen  months  afterwards,  on  an  ap- 
plication to  purchase,  he  opened  the  casks,  which  proved   to 
contain   a  mixture,  to  the  amount  of  one  third,  of  a  kind  of 
cloves  worth  one  fifth  or  one   fourth   less  than   those  exhibited. 
Thereupon  he  offered  to  return  them  to  the  defendant.     Held, 
the  bill  of  parcels  was  designed  merely  to  show  a  purchase  and 
payment  of  the  price  ;  that  it  was  not  the  only  legal  evidence 
of  the  contract,  being  usually  general  in  form  and  not  descrip- 
tive of  the  whole  agreement,  and   in  this  instance  presenting  a 
case  of  latent  ambiguity  ;  that  the  exhibition  of  a  sample   was 
designed  to  save  the  necessity  of  examining  the  whole  bulk   of 
the  property,  and  amounted  to  a  warranty  that  the  bulk  was  of 
the  same  kind   and  essentially  the  same  quality,  and  perhaps 
equally  sound  and  good.     In  this  case,  the  ground  of  complaint 
was  not  any  deterioration,  but  a  specific  difierence  in  the  plants; 
as  if  tea  should   be  sold  in  this  way,  and  the  bulk  prove  to  be 
souchong,  while  the  sample   was   hyson.     The  exhibition  of  a 
sample  must  in  all   fair  dealing  stand  in  lieu  of  a  warranty  or 
affirmation.     It  is  a  silent,  symbolical  warranty,  perfectly  under- 
stood, and   used   for  the  convenience  of  trade.     That  there  is 
not  some   unknown  and   invisible   defect,  arising   from   natural 
causes  or  previous  management  by  some  former  dealer,  the  sel- 
ler may  not  be  presumed  to  affirm.     But  he  does  affirm,  that  it 
is  the  same,  generically,  and   specifically,  with  the  sample  exhir. 
bited.(l) 

17.  A  case  was  sold  with  its  contents,  and  described  in  the 
bill  of  parcels  as  "  one  seroon  of  indigo."  At  the  time  of  sale, 
the  vendee  drew  out  from  a  hole  in  the  side  specimens  for  ex- 
amination. The  greater  part  of  the  contents  was  a  different 
substance  from  indigo,  and  the  rest  of  an  inferior  quality.* 
Held,  this  was  a  sale  by  sample,  and  the  vendee  might  maintain 
assumpsit  against  the  vendor  on  the  above  grounds.(2) 

(1)  Bradford  v.  Manly,  13  Mass.  139. 

(2)  Williams  v.  Spafford,  8  Pick.  250. 


*  The  contents  resembled  burnt  clay,  colored  like  indigo,  and  at  the  end  of  the. 
seioon  were  from  seven  to  ten  large  piecos  of  leather  and  bones. 


246  WARRANTY.  [Chap.  IX. 

18.  The  following  soniewliat  conflicting  principles  have  been 
laid  down  and  cases  decided,  in  relation  to  sales  of  cotton. 

19.  In  case  of  a  sale  by  sample  of  cotton  in  bales,  there  is 
an  implied  warranty  tliat  the  bulk  corresponds  with  the  sam- 
ple. But  the  mere  exhibition  of  a  sample  is  not  sufficient  to 
constitute  a  warranty.  It  is  a  question  for  the  jury,  whether  such 
was  the  intent  of  the  parties  (1) 

20.  Every  sale  of  packed  cotton  is,  by  usage,  a  sale  hy  sam- 
ple, and  j}{:r  se  a  warranty.  The  vendee  has  the  power  of  ex- 
amining this  article  only  externally  and  superficially,  and  the 
interior  only  to  a  small  extent.  The  instruments  with  which 
samples  are  taken  are  in  general  from  eight  to  twelve  inches 
long,  and  the  samples  taken  from  about  four  inches.  Any 
damage  to  the  bulk  could  not  be  discovered  without  opening 
the  bales,  and  this  must  be  done  with  great  expense  and  trou- 
ble.    Hence  the  rule  of  caveat  emptor  does  not  apply.  (2) 

21.  Declaration,  upon  a  warranty  of  cotton,  that  it  was  war- 
ranted to  be  "good,  merchantable  cotton,  free  from  dirt  and  all 
filthy  matter."  The  plaintiff  offered  evidence,  that  the  defend- 
ant produced  a  sample  of  good,  merchantable  cotton,  free  from 
dirt,  &c."  as  alleged  ;  and  stated  that  it  was  "  good,  upland  cot- 
ton, and  that  the  sample  was  true,"  or  that  it  was  "prime  up- 
land, Georgia  cotton."     Held,  no  variance. (3) 

22.  Cotton  was  sold  by  bill  as  "  Georgia  upland."  Samples 
were  presented,  with  the  declaration  that  they  were  drawn  from 
the  bales  in  the  warehouse  of  the  vendor,  that  they  were  "  good 
upland  cotton,"  and  true  samples.  The  vendee  had  no  oppor- 
tunity to  inspect  the  cotton.  The  bulk  having  proved  foul  and 
damaged,  being  packed  with  a  mixture  of  water,  stained  and  in 
part  rotted  ;  held,  the  vendor  was  liable  for  breach  of  an  implied 
warranty  as  to  the  quality, (4) 

23.  A  sale  by  sample,  with  a  warranty  that  the  bulk  conforms 

(1)  Oneida,  &c.  V.  Lawrence,  4  Gow.  440.     Rose  v.  Beatio,  2  Notl  &    M'C.  538. 
Waring  v.  Mason,  18  Weiid.  425. 
(•2)   Roorman  v.  Jenkins,  12  Wend.  666. 

(3)  Oneida,  &c.  v.  Lawrence,  4  Cow,  440. 

(4)  I'.,. 


Sect.    IV.]  SAI.R    BY    SAMPLE.  247 

thereto,   is  no  warranty  of  the  quality  of  the  bulk,  any  farther 
than  that  it  conforms  to  the  sample. 

24.  Sale  of  hops  by  sample,  with  a  warranty  that  the  bulk 
corresponded  with  the  sample.  Held,  this  did  not  imply  a  war- 
ranty even  that  the  hops  were  merchantable,  although  a  mer- 
chantable price  was  paid.  In  case  of  a  latent  defect,  unknown 
to  the  vendor,  and  no  fraud,  he  is  not  liable,  although  the  arti- 
cle be  unmerchantable.  It  was  well  known  in  the  trade,  that 
such  a  defect  might  exist,  and  therefore  the  vendee  should  have 
claimed  an  express  warranty.  Instead  of  which,  a  sample  was 
taken  from  the  bulk,  and  he  exercised  his  own  judgment  upon 
the  quality. (I) 

25.  A  similar  doctrine  was  settled  in  the  following  case. 

26.  The  plaintiff,  proposing  to  sell  the  defendant  a  quantity 
of  Southern  wheat,  for  the  purpose  of  examination,  run  his  arm 
down  into  the  bulk,  and  took  out  a  sample,  according  to  the 
usual  mode  of  purchase.  The  sample  did  not  differ  from  the 
bulk,  in  any  other  respect,  than  that  the  latter,  like  all  South- 
ern wheat,  had  become  heated,  and  thus  lost  its  vegetative  qual- 
ity and  its  power  of  malting.  Held,  in  an  action  for  the  price 
of  the  wheat,  that  there  was  no  warranty  against  the  defect 
above-mentioned,  and  therefore  no  defence  to  the  action.  The 
defendant  must  be  presumed  to  have  known  the  nature  and  con- 
dition of  the  wheat.  He  examined  it  for  himself,  and  therefore 
the  sale  was  not  strictly  by  sample.  Perhaps  if  the  bulk  of  the 
article  had  been  unfit  for  the  usual  purpose  to  which  wheat  is 
applied,  or  unmerchantable,  or  manifestly  inferior  to  or  differ- 
ent from  the  sample,  the  defendant  would  not  be  bound  to  re- 
ceive and  pay  for  it.  But,  the  jury  having  found  it  to  be  mer- 
chantable,  he  could  not  allege  to  the  contrary. (2) 

27.  In  private  transactions,  sale  by  sample  raises  an  implied 
warranty.  But  there  is  no  warranty  in  judicial  sales,  or  in  sales 
at  auction,  made  in  the  usual  mode.  Thus,  in  case  of  sale  by 
the  marshal  under  an  order  of  Court,  or  by  an  auctioneer  under 


(1)  Parkinsonv.  Lee,2E.  314. 

(2)  Sands  v.  Taylor,  5  John.  395. 


248  WARRANTY.  [Chap.  IX. 

the  marshal,  neither  of  these  parties  can  enter   into  a  warran- 

ty.(i) 


Section  V. — sale  of  provisions. 

1.  The  case  of  provisions  seems  to  constitute  an  exception  to 
the  general  rule  against  any  implied  warranty  of  the  quality  of 
goods  sold.* 

2.  In  the  case  of  Wright  v.  Itart,{2)  Senator  Maison  express- 
ed the  opinion,  that  the  law  makes  an  exception  to  the  general 
rule  caveat  emptor  in  the  sale  of  provisions,  from  a  regard  to 
health  and  life,  even  though  the  vendee  has  had  opportunity  for 
examination  ;  unless  the  defect  is  palpable,  or  the  vendee  has 
notice  of  it,  or  the  vendor  knows  that  the  thing  is  designed  for 
other  uses  than  food.  In  the  same  case,  Senator  Tracy  express- 
es himself  in  strong  language  with  regard  to  the  departures  from 
the  common  law  of  modern  cases  upon  this  subject. (3) 

3.  In  the  month  of  January,  the  defendant  sold  to  the  plain- 
tiff for  eight  dollars  per  barrel,  which  was  a  sound  price,  and 
for  the  purpose  of  exportation,  a  quantity  of  beef  as  good  cargo 
beef,  marked  and  branded  with  the  name  of  A,  the  inspector, 
according  to  law.  When  exposed  for  sale  in  the  West  Indies 
in  the  following  April,  the  beef  proved  to  be  tainted  and  unsale- 
able, while  other  beef  in  the  same  cargo  was  sweet  and  good. 
It  appeared  that  this  condition  of  the  beef  resulted  from  pourinor 
in  the  pickle  when  warm,  which  was  an  unusual  practice.  Held, 
the  defendant  was  liable  to  an  action  ;  that  the  object  of  the 
law,  in  requiring  beef  to  be  sorted,  salted  and  packed  for  expor- 
tation, was,  to  raise  its  credit,  increase  the  demand,  and  pre- 

(1)  The  Monte  AUegre,  9  Wheal.  616. 

(2)  18  Wend.  449. 

(3)  12  John.  468. 

*  It  is  stated  by  Blackstone,  that  in  contracts  for  provisions  it  is  always  implied 
that  they  are  wholesome.    3  Comm.  164. 


Sect,  v.]  SALE  OF  PROVISIONS.  249 

serve  health  ;  and  therefore  the  law  furnished  no  justification 
for  doing  these  acts  improperly.(l) 

4.  A  sold  to  B  twenty-five  barrels  of  beef,  branded  according 
to  law,  "  Falmouth,  Mass.,  Cargo  No.  3  beef,  S.  Bird,  D.  Insp." 
The  price  was  $6  per  barrel,  the  current  price  of  good  and 
wholesome  beef.  A  resided  at  Boston,  B  at  Bath,  Maine.  B 
afterwards  sent  abroad  four  of  the  barrels,  not  knowing  their 
quality.  By  the  accidental  bursting  of  a  barrel  in  lading,  and 
upon  subsequent  examination,  it  was  discovered,  that  twenty  one 
of  the  barrels  did  not  contain  a  sufficiency  of  pickle  and  salt, 
that  they  were  not  packed  according  to  the  brand,  and  were 
unwholesome  and  unfit  for  use  ;  of  all  which  B  immediately 
gave  notice  to  A.  The  four  barrels  sent  abroad,  at  the  price  of 
616  per  barrel,  were  returned  to  B,  and  an  entire  loss.  A  was 
merely  an  agent  for  the  owner  of  the  beef,  and  ignorant  of  its 
quality,  but  he  did  not  notify  B  of  his  being  an  agent.  The  bill 
was  made  out  in  his  (A's)  name,  the  note  was  made  payable  to 
him,  and  up  to  the  time  of  trial  B  was  still  ignorant  who  was  the 
principal.  In  an  action  brought  by  B  against  A  upon  these  facts, 
held,  it  could  not  be  sustained.  Upon  the  general  subject  of  the 
sale  of  provisions,  the  Court  remarked,  that  it  is  not  implied 
that  provisions  are  wholesome,  but  often  the  "contrary.  The 
rule  applies  to  these  as  well  as  other  articles,  that  a  vendee  can- 
not have  a  remedy  equivalent  to  that  upon  an  express  warranty, 
unless  there  have  been  some  artifice.  And  this  is  sufficiently 
proved,  where  a  victualler  sells  meat  as  fresh  to  his  customers  at 
a  sound  price,  which  is  stale  and  defective,  or  unwholesome 
from  the  state  in  which  the  animal  died.  The  offer  to  sell  is  a 
representation  of  soundness,  unless  the  contrary  be  expressed  ,• 
and  knowledge  is  presumed  from  the  seller's  being  engaged  in 
the  trade.  The  action  for  deceit  lies,  only  where  there  has  been 
an  affirmation  wilfully  false,  or  some  artifice  is  proved  or  taken 
to  be  proved,  either  directly,  or  by  necessary  presumption  from 
the  circumstances  and  nature  of  the  contract,  and  the  situation 
of  the  parties.  In  the  present  case,  with  respect  to  the  kind, 
quality,  state  and  quantity  of  the  beef,  the  vendor  undertook  to 

(1)  Bailey  v.  Nichols,  2  Root,  407. 

32 


250  WARRANTY.  [Chap.  IX. 

have  full  faith  in  the  brand,  and  represented,  that  for  any  thing 
he  knew,  the  brand  was  truly  applied,  and  there  had  been  no 
change  in  the  article.  But,  as  knowledge  on  his  part  was  ex- 
pressly negatived,  the  action  could  not  be  sustained. (1) 

5.  So,  it  is  held  by  an  ancient  authority,  that  if  I  have  an  ar- 
ticle which  is  defective,  mhetlicr  victuals  or  any  thing  else,  and, 
knowing  it  to  be  defective  I  sell  it  as  sound,  and  so  represent 
or  affirm  ;  an  action  for  deceit  will  lie.  But  although  the  thing 
be  defective,  if  the  defect  is  unknown,  though  I  represent  or 
affirm  it  to  be  sound,  no  action  lies,  unless  there  be  a  warranty. 
And  it  has  been  decided  in  Kentucky,  that  the  law  implies  a 
warranty  of  the  soundness  of  provisions,  only  where  they  are 
sold  for  consumption,  not  for  merchandize. (2) 

6.  In  an  action  on  the  case  for  knowingly  selling  to  the  plain- 
tiff unwholesome  meat,  as  and  for  good  and  wholesome  meat, 
the  declaration  need  not  allege,  that  the  plaintiff  had  paid  for 
the  meat,  nor  any  special  damage. (3) 

7.  The  plaintiff  declared  against  the  defendant,  that  the  lat- 
ter sold  him  a  quarter  of  beef  as  good  and  sound  ;  that  it  was 
not  good  and  sound,  but  bad  and  unwholesome.  It  was  proved, 
that  the  animal  ate  shortly  before  it  was  slaughtered,  many  peas 
and  oats,  and  was  killed  to  prevent  its  dying  in  consequence  of 
eating  them  ;  and  that  persons  who  ate  of  the  beef  were  made 
very  sick,  and  a  servant  of  the  plaintiff  was  sick  two  weeks.  A 
verdict  being  returned  for  the  plaintiff,  it  was  held,  that  this 
settled  the  fact  of  the  defendant's  knowledge,  and  that  the  con- 
cealment of  the  unsoundness  was  equivalent  to  a  suggestion  of 
soundness. (4)* 

(1)  Emerson  v.  Brighani,  10  Mass.  197. 

(2)  Per  Popham,  Dyer,  75.    Jones  v.  Murray,  3  Monr.  84. 

(3)  Peckham  v.  Ilolman,  11  Pick.  484. 

(4)  Van  Bracklin  v.  Fonda,  12  John.  468. 

*  Upon  the  subject  of  this  section,  the  following  quaint  statement  of  the  law  is  found 
in  an  old  reporter,  mixed  up,  it  is  true,  with  much  extraneous  matter.  "If  a  man  sell 
victuals  which  is  corrupt,  without  warranty,  an  action  lies,  because  it  is  against  the 
Commonwealth."  Roswel  v.  Vaughan,  Cro.  Jac.  197.  (See  9  Hen.  6,  pi.  53.  7  Hen, 
4,  pi.  15.  11  Edw.  4,  pi.  6. — And  although  the  book  of  Assize,  42  Ass.  pi.  8.  was  ob- 
jected, where  one  took  goods  fi-om  another  and  sold  them,  and  the  owner  retook  themi 
that  an  action  upon  the  case  was  brought  in  nature  of  deceit  for  this  falsity  in  sale. 


Sect.    VI.]    WHAT     NECESSARY    TO    STTSTAIN    SUIT,    &.C.  251 


Section  VI. — what   is  necessary    to  sustain    a    suit   on 

DEFENCE    UPON    A    WARRANTY. 

1.  Where,  in  a  sale,  there  is  no  warranty  or  fraud,  though 
the  vendee's  reasonable  and  just  expectations  as  to  the  quality 
of  the  goods  be  disappointed,  still,  if  he  receives  them  without 
objection,  he  is  liable  for  the  price.(l) 

2.  Where  there  is  a  sale  with  warranty,  or  by  express  agree- 
ment, the  vendee  is  allowed  to  restore  the  thing  sold ;  a  mere 
offer  to  return  is  sufficient,  though  not  accepted,  to  rescind  the 
bargain.  But  if  the  sale  is  absolute,  and  followed  by  no  agree- 
ment or  assent  of  the  vendor  to  take  back  the  thing,  the  con- 
tract still  remains  open.  In  such  case,  the  vendee's  only  reme- 
dy is  a  suit  upon  the  warranty,  unless  it  can  be  proved  that  the 
vendor  knew  of  the  unsoundness,  and  the  former  offered  to  re- 
turn the  article  in  reasonable  time.(2) 

3.  In  order  to  sustain  an  action  upon  a  warranty,  it  is  not 
necessary  for  the  vendee  to  return  or  offer  to  return  the  article. 
Otherwise,  where  he  disaffirms  the  contract,  and  sues  to  recover 
back  the  price. (3) 

4.  Where  the  vendor  of  slaves  makes  a  fraudulent  misrepre- 


(1)  Goodhue  V.  Butman,  8  Greenl.  116. 

(2)  Thornton  v.  Wynn,  12  Wheat.  183.    Rowley  v.  Bigelow,  12  Pick.  307.     Sea- 
ver  V.  Dingley,  4  Greenl.  306.     Hyatt  v.  Boyle,  5  Gill.  &  J.  110. 

(3)  Boorman  v.  Jenkins,   12   Wend.  566.     Waring   v.   Mason,   18  Wend.  425. 
Franklin  v.  Long,  7  Gill.  &  J.  407. 

without  any  warranty  ;  Tanfield  thereto  answered  that  the  said  book  is  not  adjudged, 
but  the  party  admits  it  and  takes  issue  ;  yet  if  it  were  allowed  to  be  law,  it  is  because 
he  there  had  possession  by  tort,  and  so  had  color  in  shew  to  be  the  owner ;  and  he 
was  deceived  by  buying  of  him  who  had  only  gained  a  tortious  possession  ;  and  al- 
though he  had  not  any  right,  yet  every  one  took  cognizance  of  him  as  owner,  and  he 
himself  knew  that  he  was  not  right  owner;  which  is  the  reason  that  the  aetion  was 
maintainable  :  but  here  he  had  not  any  possession ;  and  it  is  no  more  than  if  one 
should  sell  lands  wherein  another  is  in  possession,  or  a  horse,  whereof  another  is  pos- 
sessed, without  covenant  or  warranty  for  the  enjoyment,  it  is  at,  the  peril  of  him  wlio 
buys,  and  not  reason  he  should  have  an  action  by  the  law,  where  he  did  not  provide 
for  himself.     Wherefore  it  was  adjudged  for  the  defendant.     Cro.  Jac.  197. 


2S3  WARRANTY.  [Chap.  IX. 

sentation  concerning  them,  and  thereby  induces  the  vendee  to 
purchase,  but  the  latter,  after  discovering  the  fraud,  uses  and 
disposes  of  part  of  the  property,  as  his  own  ;  he  cannot  recover 
back  the  price  from  the  vendor.  Nor  does  it  make  any  diffe- 
rence, that  after  thus  using  the  property,  the  plaintiff  discover- 
ed some  incidents  to  the  fraud  before  unknown.(l) 

5.  Where  goods  sold  do  not  correspond  with  the  order,  the 
vendee  must  either  return,  or  notify  the  vendor  to  take  them, 
in  order  to  maintain  an  action  for  their  unfitness,  or  resist  a 
suit  for  the  price.  (2) 

6.  The  plaintiff  contracted  with  the  defendant  for  a  quantity 
of  beer,  intending  to  export  it  to  Gibraltar.  The  plaintiff  dis- 
covered that  the  beer  supplied  was  unfit  for  this  purpose,  in  Ju- 
ly, but  neglected  to  notify  the  defendant  till  December,  when  it 
was  too  late  for  the  defendant  himself  to  export  it.  Held,  the 
plaintiff  could  not  maintain  an  action  for  the  bad  quality  of  the 
beer.(3) 

7.  Sale  of  goods  with  warranty,  and  a  bill  of  exchange  giv- 
en for  the  pr>ce.  The  vendor  knew  of  a  defect  in  the  goods, 
and  the  vendee  tendered  them  back,  but  the  vendor  did  not  ac- 
cept them.  To  an  action  on  the  bill,  held,  the  breach  of  war- 
ranty was  a  good  defence. (4) 

8.  The  plaintiff  and  defendant  entered  into  a  contract  by 
which  the  defendant  was  to  deliver  the  plaintiff  certain  steers, 
the  note  of  a  third  person,  and  a  horse,  and  in  return  to  re- 
ceive a  horse  of  the  plaintiff  and  a  note  which  the  plaintiff  held 
against  him.  The  plaintiff  represented  his  horse  as  sound  ;  but 
it  was  unsound,  and  he  knew  the  fact.  The  defendant  agreed 
to  pasture  the  steers  for  the  plaintiff  one  week.  Finding  the 
horse  unsound,  the  defendant  returned  it,  refused  to  deliver  the 
steers,  and  commenced  an  action  against  the  plaintiff  for  selling 
an  unsound  horse.  The  present  suit,  being  trover  for  the 
steers,  was  commenced  before  the  above-named  action.  Held, 
the  defendant  might  have  treated   the   bargain  as  void  on  the 

(1)  Campbell  v.  Fleming,  1  Ad.  &  El.  40. 

(2)  Fisher  v.  Samuda,  qu.  I  Camp,  190.     Gioning  v.  Mcndhain,  1  Stark.  257. 

(3)  lb. 

(4)  Lewis  V.  Cosgrave,  2  Taun.  2.    Franklin  v.  Long,  7  Gill.  &  J.  407: 


Sect.    VI.]     WHAT    NECF.SSARY    TO    SUSTAIN    SUIT,  &.C.  253 

ground  of  fraud,  by  returning  the  plaintiff's  horse  and  his  own 
note,  or,  if  the  latter  were  cancelled,  the  amount  of  it  in  mo- 
ney ;  and  might  then  have  maintained  trover  for  his  own  horse 
and  the  note  of  the  third  person  ;  and  that  the  plaintiff  would 
thus  have  lost  all  title  to  the  steers.  But  the  law  would  not  al- 
low the  defendant  to  compel  even  a  fraudulent  seller  to  bring 
an  action  for  his  own  property ;  and  by  commencing  an  action 
against  the  plaintiff,  he  treated  the  contract  as  still  subsisting 
and  would  be  entitled  to  recover  damages  for  the  breach  of  it. 
Judgment  for  the  plaintiff.(l) 

9.  A  horse  sold  was  warranted  sound  and  six  years  old,  with 
condition  that  unless  returned  in  two  days,  he  should  be  con- 
sidered sound.  Held,  this  condition  did  not  apply  to  the  age  of 
the  horse  ;  and  that  the  buyer  might  return  him  ten  days  after 
the  sale,  on  discovering  that  he  was  twelve  years  old. (2) 

10.  At  an  auction  sale,  the  auctioneer  declared  it  was  to  be 
on  the  usual  condition;  which  conditions  were  printed  and  put 
up  under  the  auctioneer's  box.  One  of  them  was,  that  where 
there  was  a  warranty  of  a  horse  sold,  in  case  of  any  defect  the 
horse  must  be  returned  before  the  evening  of  the  second  day 
after  the  sale.  Held,  this  was  sufficient  notice  to  charge  a  pur- 
chaser, and  deprive  him  of  an  action  for  breach  of  warranty, 
the  horse  not  having  been  returned  within  the  time  stipulat- 
ed.(3) 

11.  Though  a  vendee  may  set  up  a  warranty  in  defence  to  a 
suit  for  the  price,  in  mitigation  of  damages,  yet  the  law  does 
not  require  him  so  to  do ;  and  if  he  omits  to  take  this  course, 
he  may  afterwards  bring  an  action  upon  the  warranty.(4) 

12.  So,  where  a  vendee  with  warranty  pays  a  note  given  for 
the  price,  after  notice  of  a  breach  of  warranty ;  he  may  still, 
under  some  circumstances,  recover  damages  for  such  breach. 

13.  Sale  with  warranty,  and  a  note  given  for  the  price.  The 
vendee  paid  the  note  after  notice  of  a  breach  of  warranty,  but 
before  ascertaining  the  amount  of  damage  thereby  sustained  ; 

(1)  Kimball  v.  Cunningham,  4  Mass.  502. 

(2)  Buchanan  v.  Parnshaw,  2  T.  R.  745.     See  3  Esp.  271. 

(3)  Mesnard  v.  Aldridge,  3  Esp.  271. 

(4)  Cook  V.  Moseley,  13  Wend.  277. 


254  WARRANTY.  [Chap.  IX. 

he  having  re-sold  the  article  with  warranty,  and  a  claim  havino- 
been  made  upon  him  by  his  vendee,  though  not  yet  substantiat- 
ed. Held,  the  former  vendee  might  sustain  a  suit  on  the  war- 
ranty. (1) 

14.  The  purchaser  of  a  horse  with  warranty  afterwards  in- 
formed the  seller  that  the  horse  was  unsound,  and  the  latter 
said,  if  it  was  so,  he  would  take  him  back  and  return  the  price. 
Held,  the  vendee  might  still  sue  upon  the  warranty. (2)* 


Section  VH. — form  of    action  and    manner  of    pleading 

IN    SUITS    UPON    warranty    AND    FOR    DECEIT. 

1.  In  order   to  recover   for  a  breach  of  warranty,  the  action 
must  be  expressly  founded  upon  such   breach;  and   not  upon 

(1)  Boorman  v.  Jenkins,  12  Wend.  566. 

(2)  Payne  v.  Whale,  7  E.  274. 


*  It  seems  to  have  been  doubted  in  some  cases,  whether,  after  acceptance  of  an  ar- 
ticle sold  with  warranty,  the  vendee  has  a  right  to  return  it  and  recover  back  the  pur- 
chase money,  or  to  resist  an  action  for  the  price,  upon  the  ground  of  a  breach  of  war- 
ranty ;  unless  this  privilege  was  expressly  reserved  by  the  contract,  or  else  the  ven- 
dor was  guilty  of  fraud.  A  distinction,  not  very  intelligible,  has  been  made,  in  this 
respect,  between  the  purchase  of  a  specific  chattel;  and  an  executory  contract,  by 
which  the  vendee  orders  goods  of  a  certain  quality  from  the  manufacturer.  It  is  to 
the  latter  of  these  two  cases  alone,  that  the  principle  above  stated  is  held  applicable. 
It  would  seem  that  the  true  question  must  be,  whether  the  thing  has  been  received 
and  accepted,  or  whether  the  purchaser  has  had  opportunity  to  examine  it.  He  may 
treat  the  property  as  his,  so  far  only  as  is  necessary  to  give  it  a  fair  trial,  without  los- 
ing the  right  of  returning  it.  But  if  the  arlicle,  when  returned,  is  in  a  worse  state 
than  i(  would  have  been  if  returned  immediately  upon  discovery  of  the  defect ;  the 
vendee  cannot  defend  against  an  action  for  the  price.  Breach  of  warranty,  it  seems, 
may  always  be  given  in  evidence  in  mitigation  of  damages,  or,  if  the  thing  be  of  no 
value,  in  defence  to  the  action.  And  an  omission  to  return  the  article  sold  for  an  un- 
reasonable length  of  time,  though  raising  a  strong  presumption  that  it  corresponded 
with  the  contract,  will  not  be  a  bar  to  an  action  upon  the  warranty,  if  a  breach  is  dis- 
tinctly proved.  2B.  &A.  456.  3Esp.  83.  Stark.  Evi.  Pt.  4,  p.  615.  1  Doug.  23, 
24  n.  1  T.  R.  133.  7  E.  274.  490,  1,  n.  3  Camp.  299,  1  Star.  R.  107.  1  Cromp. 
&M.  209.    2  Camp.  416.    Long,  223, 4. 


Sect.    VII.]  FORM    OF    ACTION,    &  c.  255 

fraud.     And  allegations  of  fraud  or  warranty  must  be  proved 
precisely  as  laid.(l)* 

3.  The  action  of  deceit,  or  the  action  on  the  case  for  deceit, 
can  be  maintained  only  where  there  is  an  actual  and  intention- 
al deception,  and  a  loss  or  damage  resulting  from  it. (-2) 

3.  Assumpsit  is  the  proper  action  upon  an  express  or  implied 
warranty.  But  if  the  action  is  founded  on  deceit  or  fraud,  and 
not  upon  breach  of  contract,  there  must  be  an  allegation  of  such 
deceit;  otherwise  no  proof  of  it  is  admissible. (3) 

4.  The  plaintiff  and  defendant  having  a  conversation  respect- 
ing certain  obligations,  ihe  latter  offered  to  transfer  them,  and, 
as  an  inducement  for  the  plaintiff  to  buy,  affirmed  that  they  were 
good  and  collectable,  and  that  the  obligor  was  good  and  would 
pay  them.  The  declaration  alleges,  that  the  plaintiff  gave  cre- 
dit to  these  statements,  bought  and  took  a  transfer  of  the  obli- 
gations, and  that  to  induce  him  to  take  such  transfer,  the  de- 
fendant falsely  and  wickedly  alleged,  that  the  obligations  and 
assignments  were  good  and  sufficient ;  that  the  defendant  has 
not  performed  his  said  affirmation,  promise  and  assumpsit,  and 
the  plaintiff  avers  that  the  defendant  at  the  time  well  knew  that 
the  obligor  was  not  good,  &c.  The  declaration  also  contained 
a  second  count  for  money  had  and  received.  Held,  there  was 
a  misjoinder  of  counts.  As  there  was  an  assignment  in  writing, 
the  law  could  not  raise  any  parol  implied  warranty,  but  the  ac- 
tion must  rest  wholly  in  deceit.  Hence,  not  guilty  was  the  pro- 
per plea  to  one  count,  while  non-assumpsit  must  be  pleaded  to 
the  other.(4) 

5.  A  count,  alleging  a  warranty  made  after  the  sale  was  com- 
plete, is  bad  after  verdict,  because  it  avers  no  consideration  for 
the  warranty,  or  a  past  consideration,  viz.  that  the  plaintiff  had 

(1)  Thompson  Vv  Ashton,  14]|  John.  316.  Sneirv.  Moses,  1  John.  96.  Perry  v. 
Aaron,  lb.  129. 

(2)  Emerson  v.  Brigham,  10  Mass.  199,  200, 

(3)  Evertson  v.  Miles,  6  John.  138.    Rew  v.  Barber,  3  Cow.  272. 

(4)  Wilson  V.  Marsh,  1  John.  503. 

*  In  Pennsylvania,  on  a  general  allegation  of  misrepresentation  and  fraud,  a  party 
may  be  compelled  to  specify  the  evidence  which  is  to  prove  the  fraud.  Com.  v.  Bren- 
neman,  1  Rawle,31I. 


•256  WARRANTY.  [Chap.  IX. 

bought.     A  warranty  must  be  made  at  the  time  of  sale,  and  be  a 
part  of  the  contract. (1) 


Section  VIII. — evidence,  in  case  of  warranty. 

1.  Where  a  vendor  of  goods  makes  representations  amount- 
ing to  a  warranty,  and  the  sale  is  afterwards  consummated  by  a 
written  and  sealed  transfer  without  warranty  ;  in  an  action  of 
assumpsit  by  the  vendee,  he  cannot  offer  evidence  of  the  pre- 
vious representations,  it  being  presumed  that  the  writing  con- 
tains all  the  terms  of  the  bargain. (2)* 

3.  In  case  of  sale  with  warranty,  the  warranty  is  an  essential 
part  of  the  contract  and  should  be  set  out  in  the  note  or  memo- 
randum. Parol  proof  of  the  warranty  is  inadmissible,  and  the 
omission  of  it  renders  the  contract  void.  (3) 

3.  But  where  the  vendor  of  a  negro  gave  a  warranty  in  writ- 
ing of  his  soundness;  held,  parol  proof  was  admissible,  that  at 
the  time  of  sale  he  informed  the  vendor  of  a  defect. (4) 

4.  Where  an  agent  sells  in  writing  and  warrants  in  his  own 
name,  he  is  personally  bound,  though  the  vendee  had  notice  of 
his  agency.  To  exempt  him  from  personal  liability,  the  fact 
should  appear  by  the  writing. (5) 

5.  Evidence  is  not  admissible  of  a  custom  or  usage,  by  which 
the  mere  sale  of  a  particular  article  implies  a  warranty  of  its 
goodness.  Thus  a  vendee  of  crockery  ware  was  not  allowed  to 
prove  a  usage  in  New  York,  by  which  the  exhibition  of  the  in- 
voices in  sales  of  that  article  constitutes  an  undertaking  that  it 

(1)  Bloss  V.  Kittridge,  5  Verm.  29. 

(2)  Van  Ostrand  v.  Reid,  1  Wend.  424. 

(3)  Peltier  v.  Collins,  3  WenJ.  459. 

(4)  Schuyler  v.  Russ,  2  Caine?,  202. 

(5)  Hastings  v.  Lovering,  2  Pick.  214. 

*  In  order  to  entitle  the  seller  of  goods  obtained  by  fraudulent  representations  to 
reclaim  the  goods,  it  is  not  necessary  that  the  representation  should  have  been  made 
at  the  time  of  the  sale,  as  in  case  of  a  warranty.     Sever  v.  Dinglcy,  4  Green.  306. 


Sect.    IX.]  EVIDENCE    IN    CASE    OF    WARRANTY.  257 

is  good  and  merchantable  ;  although  there  was  some  contradic- 
tion in  the  account  given  by  the  vendor,  as  to  the  place  where, 
and  the  persons  from  whom,  he  obtained  the  property.(l) 

6.  A  agreed  to  sell  to  B  a  quantity  of  prime  bacon.  B  exam- 
ined and  weighed  it,  and  paid  for  it  by  giving  a  bill  of  exchange 
at  two  months.  Before  maturity  of  the  bill,  B  gave  notice  to 
A,  that  the  bacon  did  not  conform  to  the  terms  of  the  agree- 
ment. In  a  suit  upon  the  warranty,  A  cannot  be  permitted  to 
prove  a  usage,  for  purchasers  to  reject  the  article  purchased  at 
the  time  when  it  is  examined. (2) 

7.  But,  it  being  customary  in  the  pimento  trade  for  the  ven- 
dor to  declare  when  the  article  was  sea-damaged  ;  held,  a  sale 
without  such  declaration  raised  an  implied  warranty  that  it  was 
not  sea-damaged. (3) 

8.  Where  there  is  an  adverse  title  to  the  thing  sold,  the  ven- 
dee may  recover  against  the  vendor  upon  the  implied  warranty, 
without  proving  a  recovery  against  himself  by  the  true  owner. 
The  right  of  action  and  the  period  of  limitation  commences  at 
the  time  of  sale  and  delivery.(4) 

9.  Where  a  vendee  has  been  evicted,  in  a  suit  against  the  ven- 
dee upon  the  implied  warranty  of  title,  he  may  show,  as  evidence 
of  eviction,  the  record  of  a  judgment  against  him  by  the  true 
owner.  And  if  he  once  notified  the  vendor  of  the  commence- 
ment of  that  suit,  this  is  sufficient,  and  the  latter  was  bound  to 
take  notice  of  the  subsequent  proceedings.  As  where  the  ven- 
dor attended  with  a  witness  at  one  court,  but  a  trial  was  not 
then  had,  and  did  not  attend,  having  no  notice,  at  the  trial  or 
at  a  subsequent  term. (5) 

10.  Where  a  vendee  knows  of  an  adverse  claimant  to  the 
property,  and  voluntarily  pays  the  value  to  him,  this  payment  is 
no  defence  to  a  suit  by  the  vendor  for  the  price.  Otherwise,  if 
the  third  person  has  recovered  judgment  in  an  action  against 
the  vendee.  The  case  is  analogous  to  that  of  re7it.  If  A  has 
occupied  certain  premises  under  B,  he  cannot  defend  against  a 

(1)  Thompson  v.  Ashton,  14  John.  316. 

(2)  Yeats  V.  Pim,  2  Marsh.  141.     6  Taun.  446. 

(3)  Jones  v.  Bowden,  4  Taun.  847. 

(4)  Payne  v.  Rodden,  4  Bibb.  304. 

(5)  Blasdale  v.  Babcock,  1  John.  517. 

33 


258  WARRANTY.  [Chap.  IX. 

suit  for  the  rent  by  B,  upon  the  ground  that  he  has  paid  rent  to 
C,  and  that  B  has  no  title.  Otherwise  if  C  has  proved  his  title 
and  recovered  the  rent  from  A.(l) 


Section  IX. — damages  in  case  of  warranty. 

1.  In  an  action  against  the  vendor  of  a  horse,  for  false  affirm- 
ation, the  plaintiff  cannot  recover  the  expense  of  keeping,  pre- 
vious to  an  offer  to  return  the  horse.  (2) 

2.  The  plaintiff  sold  to  the  defendant  several  articles,  and 
warranted  them  to  be  of  a  certain  quality.  Three  notes  were 
given  by  the  vendee  for  the  price,  and  two  of  them  paid.  In 
an  action  upon  the  third  note,  held,  the  defendant  might  show 
a  breach  of  warranty  as  to  one  of  the  articles,  either  in  bar  of 
the  action  or  mitigation  of  damages.  The  law  would  not  au- 
thorize the  construction,  that  the  consideration  of  each  article 
was  rateably  contained  in  each  note,  and  therefore  the  plaintiff 
was  entitled  to  recover  upon  each  the  proportional  price  of  the 
article  which  proved  good. (3) 


Section  X. — warranty  of  title. 

1.  Where  a  vendor  is  in  possession,  there  is  an  implied  war- 
ranty of  title.(4)* 

(1)  Blasdalc  v.  Babcock,  1  John.  517. 

(2)  West  V.  Anderson,  9  Conn.  107. 

(3)  Judd  V.  Dennison,  10  Wend.  512. 

(4)  Chism  V.Woods,  Hardin,  531.    De  Freeze  v.  Trumpcr,  1   John.  274.    Heer- 
manee  v.  Vernoy,  6  John.  5.    Swett  v.  Colgate,  20.  196. 


*  The  necessity  of  a  vendor's  possessjojj,  to  raise  such  implied  warranty,  is  per- 
haps founded  upon  a  dictum  of  Lord  Holt  (Medina  v.  Stoughton,  1  Salk.  210)  to  the 
effect,  that  where  a  vendor  is  in  possession  and  affirms  the  thing  to  be  his,  this  is  a 
warranty  of  title.  But  jf  not  in  possession,  the  rule  caveat  emptor  a[.phcs.  It  seems, 
however,  that   an  express  affirmaliou   is    not  necessary  to  render   the  vendor  liable, 


Sect.  X.]  wARRA:<Tr  of  title.  259 

2.  On  the  other  hand,  where  a  vendor  is  in  possession  of  the 
thing  sold,  and  delivers  it  to  the  vendee;  possession  \s  prima  fa- 
cie evidence  of  title,  and  if  the  vendee  would  avoid  the  sale  up- 
on the  ground  of  title  in  another,  the  burden  of  proof  is  upon 
him.(l) 

3.  If  one  person  purchase  the  goods  of  another  from  a  third 
who  has  no  authority  to  sell  them,  the  former  is  a  wrongdoer  to 
the  owner.  But  he  may  recover  damages  from  the  seller, 
though  the  seller  did  not  undertake  that  he  had  the  right  to  sell, 
or  know  that  he  had  no  such  right.  The  principle  is,  that  if 
one  having  the  possession  of  property,  which  gives  him  the 
character  of  owner,  affirm  that  he  is  the  owner,  and  thereby  in- 
duce another  person  to  purchase  it,  when  in  fact  he  is  not  the 
owner,  he  subjects  himself  to  an  action.  This  principle  is  not 
founded  upon  contract,  but  upon  the  falsehood  of  the  seller — 
his  affirmation  of  what  he  does  not  know  to  be  true,  or  does 
know  to  be  false. (2) 

4.  A  horse  being  seised  upon  execution,  the  sheriff  conveyed 
it  to  the  execution  creditor,  who  ordered  him  to  return  it  to  the 
debtor,  which  was  accordingly  done.  The  debtor  sold  the  horse 
to  A,  and  A  to  B,  both  acting  bona  fide  and  without  notice  of 
the  levy,  and  afterwards  the  sheriff  took  it  from  B,  and  sold  it 
upon  the  execution.  Held,  B  might  maintain  an  action  against 
A  upon  an  implied  warranty  of  title. (3) 

5.  Sale  of  goods  on  civil  process  by  the  auctioneer  of  a  sheriff, 
who,  in  reference  to  some  possible  defect  of  title,  desired  the 
vendee  to  give  him  a  written  notice  not  to  pay  over  the  price  to 
the  execution  creditor.  Not  receiving  such  notice,  he  paid  it 
over.  It  did  not  appear  that  the  creditor  knew  of  any  defect  in 
the  title.  Held,  notwithstanding  this  request,  the  vendee  might 
still  maintain  an  action  against  the  vendor,  on  the  implied  prQ« 

(1)  5  Monr.  316. 

(2)  Adamson  v.  Jarvis,  4  Bing.  73,     1  Salk.  210. 

(3)  Rew  V.  Barber,  3  Cow.  272. 


where  he  is  in  possession  ;  and  the  other  part  of  Ld.  Holt's  proposition  has  also  been 
questioned,  (per  BiiUer,  J.,  3  T.  R.  57,  8)  and  is  said  not  to  be  found  in  Ld.  Raymond  s 
report  of  the  same  case.  (Ld.  Ray.  593.)  In  Mr.  Metcalf' s  notes  to  Yelverton,  { 21 
b.)  affirmation  of  title  is  said  to  be  a  sufiicicnt  wananty.  Otherwise  in  the  sale  of 
real  estate. 


260  wARUANTv.  [Chap    IX. 

mise  that  a  vendor  does  not  know  of  an  existing  defect  in  the  ti- 
tle of  the  thing  sold  ;  and  that  the  damages  must  he  not  merely 
nominal,  but  the  amount  of  injury  suffered.  An  action  for  mo- 
ney had  and  received  would  not  lie.(l) 

6.  At  a  sale  on  execution,  the  constable  declared  the  proper- 
ty to  belong  to  the  debtor,  and  that  he  would  sell  it  as  the  law 
directed.     Held,  this  was  no  warranty  of  title.  (2) 

7.  The  plaintiff,  an  auctioneer,  sold  goods  under  the  order  of 
the  defendant,  who  had  no  authority  to  dispose  of  them,  and  the 
true  owner  afterwards  recovered  their  value  from  the  plaintiff. 
The  plaintiff  declares  against  the  defendant,  in  an  action  on  the 
case,  that  the  defendant  was  possessed  of  certain  goods,  and 
represented  to  the  plaintiff  that  he  had  a  right  to  sell  them.  That 
the  plaintiff  in  consequence  thereof,  at  the  defendant's  request, 
sold  the  goods  at  auction,  and,  after  deducting  the  charges  for 
his  trouble,  paid  the  balance  of  the  proceeds  to  the  defendant. 
That  the  defendant  herein  deceived  the  plaintiff,  not  being  at 
the  time  of  sale  entitled  to  sell  the  goods,  and  the  true  owner 
afterwards  recovered  their  value  from  the  plaintiff,  and  the  de- 
fendant refused  to  reimburse  him.  It  was  objected  to  this  dec- 
laration, that  it  alleged  merely  a  want  of  authority  to  sell  at  the 
time  of  sale,  not  at  the  time  when  the  defendant  claimed  such 
authority.  Held,  the  real  ground  of  action  was,  that  the  defend- 
ant affirmed  that  he  had  power  to  sell  the  goods,  and  requested 
the  plaintiff  to  do  it,  whereby  the  plaintiff  was  induced  to  sell 
them,  when  in  fact  the  defendant  had  no  power  thus  to  autho- 
rize him.  This  was  an  injury  to  the  plaintiff,  and  a  benefit  to 
the  defendant.  Hence,  the  plaintiff  had  a  right  of  action,  whe- 
ther the  affirmation  were  false  or  true.  If  the  defendant  had  au- 
thority when  he  employed  the  plaintiff,  and  afterwards  lost  it,  he 
was  bound  to  inform  the  plaintiff  accordingly,  or  at  least  not  to 
take  the  proceeds  of  sale.  The  evidence  showed  that  the  de- 
fendant had  no  authority  at  the  time  of  sale,  and  he  showed  none 
at  the  time  when  he  affirmed  that  he  had  it.  Hence  the  law 
presumed,  that  he  never  had  authority.  Held,  the  declaration, 
on  these  grounds,  was  good  after  verdict.  (3) 

(1)  Peto  V.  Blades,  5  Taun.  657. 

(2)  Morgan  v.  Fenchcr,  1  Blac.  10. 

(3)  Adamson  v.  Jai  vis,  4  Bing.  66. 


CHAPTER  X. 


RESCINDING  OF  SALES. 

Section  I. — rescinding  by  mutual  agreement  of  parties. 

1.   General  principles  and  decided  cases. 

1.  Rescinding   in  connexion  icith   the  insolvency  of  the  vendee, 
and  stoppage  in  transitu. 
15.  Promise  of  the  vendor  to  restore  the  consideration,  ichether  a 

rescinding. 
17.  Rescinding  in  part,  hy  parol. 

20.  Re-exchange — payment  or  delivery  necessary. 

Section  II. — rescinding  by  the  vendor. 

1.  Neglect  of  vendee  to  take  the  goods. 

2.  Disaffirmance  for  fraud  or  insolvency  of  the  vendee. 

12.  Time  of  rescinding. 

13.  Resumption  hy  the  vendor  as  agent  of  the  vendee. 
15.  Election  oj  the  vendor  to  rescind  or  the  reverse. 

21.  What  will  justify  non-delivery  of  goods  sold. 

Section  III. — rescinding  by  the  vendee. 

1,  Return  of  thing  sold;  for  what  causes,  at  what  time,  S^c. 
13.   Rescinding  hy  vendee,  after  a  hreach  of  contract  to  deliver 
hy  the  vendor. 


262  RESCINDING  OF  SALES.  [Chap.    X. 

15.  Breach  of  special  agreement   by  the  vendee  is  a  rescinding, 

13.  Mere  offer  to  return. 

14.  Rescinding  must  he  for  the  tchole. 

Section  IV. — effect  of  the  rescinding  of  a  sale. 


Section  I — hescinding  bv  mutual  agreement  of  parties. 

1.  A  sale  may  be  rescinded  by  consent  of  the  vendor  and 
vendee,  before  the  rights  of  third  persons  intervene.  (1) 

2.  Where  there  is  a  delivery  of  goods  with  the  concurrence 
of  all  parties  interested,  an  agreement  by  the  parties  to  rescind 
puts  an  end  to  the  contract.(2) 

3.  When  a  bargain  is  made,  and  all  the  parties  consent  to  dis- 
solve it,  and  other  conditions  are  proposed,  the  new  agreement 
destroys  the  former  bargain. (3) 

4.  A  sells  to  B  several  sheep  in  a  market,  without  delivery. 
Afterwards,  in  the  same  market,  this  agreement  was  discharged, 
and  a  new  one  made,  that  B  should  drive  the  sheep  home  and 
depasture  them  till  such  a  time,  A  paying  him  a  weekly  sum 
therefor  ;  and  that  B  might  then  have  them  by  paying  an  agreed 
price.  Before  this  time,  A  sold  the  sheep  to  the  plaintiff,  and 
afterwards  B  sold  them  to  C,  who  replevied  them  from  the  plain- 
tiff; and  the  defendant,  a  servant  of  C,  aided  in  driving  the 
sheep  to  C's  grounds,  where  they  were  left.  After  demand  of 
the  defendant,  the  plaintiff  brings  trover  against  him.  Held,  the 
new  agreement  between  A  and  B  defeated  the  first  sale,  being 
made  by  mutual  consent  and  upon  new  conditions ;  that  the  new 
agreement  was  no  sale,  and  the  property  remained  in  A,  and  pass- 
ed to  the  plaintiff' from  A. (4)* 

(1)  Smith  V.  Fluid,  6  T.  R.  402. 

(2)  Atkin  v.  Barwick,  1  Str.  165. 

(3)  Mires  V.  Solebay,  2  Mod.  248. 

(4)  Mires  v.  Solebay,  2  Mod.  242. 


*  Bui  it  was  further  held,  that  the  action  did  not  lie,  because  1.  the  sheep  were  in 
custodia  legia  at  the  time  of  the  alleged  conversion  :  2.  the  defendant  was  acting   as 


Sect.    I.]       RESCINDINO    BY    MUTUAL    AGREEMENT,  &C.  263 

5.  But  where  an  agreement  to  rescind  is  in  its  terms  execu- 
tory and  conditional,  and  before  completion  of  it  new  rights  in- 
tervene, the  title  will  not  revest  in  the  vendor. 

6.  The  defendant,  having  sold  goods  to  A  by  a  bill  of  parcels, 
receipted,  and  taken  A's  negotiable  note  in  payment,  gave  him 
a  certificate  that  he  held  them  for  him  on  storage.  Afterwards 
A  offered  to  cancel  the  bargain,  if  the  defendant  would  return 
the  note,  to  which  the  latter  assented.  The  note  was  at  that 
time  in  a  bank,  having  been  discounted  for  the  defendant.  Some 
days  afterwards,  the  defendant  tendered  A  the  note,  and  request- 
ed him  to  cancel  the  agreement.  A  had  in  the  mean  time  as- 
signed the  goods  to  the  plaintiffs,  his  creditors,  giving  them  no- 
tice, however,  of  the  conversation  in  relation  to  the  cancelling. 
The  plaintiffs  bring  trover  against  the  defendant.  Held,  the 
original  contract  vested  the  property  in  A ;  that,  being  an  exe- 
cuted agreement,  it  was  not  rescinded  ;  and  that  there  was  no 
resale  to  the  defendant,  but  at  most  a  conditional  agreement  to 
convey.     Hence  the  action  was  sustained.(l) 

7.  The  rescinding  of  a  sale  by  mutual  consent  generally  oc- 
curs in  connexion  with  the  insolvency  of  the  vendee,  and  leads 
to  a  consideration  of  the  vendor's  right  of  stopping  in  transitu. 
Upon  this  subject  the  following  cases  have  been  decided. 

8.  Goods  were  consigned  by  A  to  B.  On  arrival  at  the 
wharfinger's,  B  refused  to  take,  and  ordered  his  attorney  to  take 
measures  for  stopping  them.  The  attorney  accordingly  notified 
the  wharfinger  not  to  deliver  to  B.  Three  days  afterwards,  A 
wrote  to  confirm  this  direction.  The  next  day,  the  goods  were 
seized  upon  an  execution  against  B.  Held,  the  contract  was 
rescinded  before  such  seizure,  and  that  the  arrival  of  the  goods, 
and  the  order  given  by  B  in  relation  to  them,  had  not  terminat- 
ed the  transitus.{2) 

9.  A,  residing  at  N  in  Devonshire,  ordered   goods  from  B  at 

(1)  Chapman  v.  Searle,  3  Pick.  38. 

(2)  Bartram  v.  Farebroihei-,  4  Bing.  579. 


a  servant,  and  the  act  commanded  lo  be  done  was  not  an  apparent  tcrong  or  a  tres- 
pass ;  3.  the  defendant  acted  under  legal  process;  4.  the  verdict  did  not  find  a  con- 
version, but  only  a  demand  and  refusal 


264  RESCINDING  OF  SALES.  [Chap.  X. 

London,  but  gave  no  directions  to  have  them  sent  by  any  par- 
ticular vessel.  They  were  forwarded  to  him  by  ship,  by  way  of 
Exeter,  and  he  was  advised  accordingly.  Upon  their  arrival  at 
Exeter,  the  goods  were  delivered  to  C  a  wharfinger,  who  receiv- 
ed and  booked  them  on  A's  account,  paying  the  freight  and 
charges.  After  arrival  of  the  goods,  A  advised  B,  that  having 
become  involved  he  should  not  take  them,  and  that  they  were 
still  at  Exeter.  At  this  time,  A  had  committed  an  act  of  bank- 
ruptcy, and  afterwards  became  legally  a  bankrupt.  B  applied 
to  C  for  the  goods,  tendering  the  freight  and  charges,  and  C 
promised  not  to  part  with  them,  till  he  should  be  sure  of  a  safe 
delivery,  but  he  afterwards  delivered  them  to  the  assignees  of 
A,  though  indemnified  by  B.  Held,  B  had  the  right  of  stop- 
page in  transitu,  and  might  maintain  trover  against  C.  Cham- 
bre,  J.,  doubted,  whether  the  right  can  be  exercised,  when  the 
vendor  obtains  possession,  as  in  this  case,  not  by  his  own  dili- 
gence, but  by  casual  information,  or  through  the  act  of  the  ven- 
dee after  bankruptcy  ;  because,  in  the  latter  case,  the  vendee 
gives  him  a  preference  over  other  creditors.  But  this  judge 
concurred  with  the  rest  of  the  Court,  as  the  above  distinction 
was  a  small  one,  and  here  was  no  fraud  by  the  vendee.(l) 

10.  A,  the  plaintiff,  sent  goods  to  B  by  a  carrier,  according  to 
B's  order,  but  B,  before  their  arrival,  refused  to  take  them,  ob- 
jecting to  the  quantity,  the  term  of  credit,  the  quality  and  price. 
After  some  correspondence  between  A  and  B,  A  agreed  to  sell 
the  goods  to  C,  a  purchaser  found  by  B.  B  becoming  bank- 
rupt, the  defendants,  his  assignees,  with  notice  of  the  above 
facts,  urged  him  to  include  these  goods  in  the  assignment,  but 
he  declined  doing  it,  saying  "  he  would  rather  rob  on  the  high- 
way, for  he  had  never  accepted  them."  The  defendants  after- 
wards induced  the  carrier  to  deliver  them  the  goods.  The  plain- 
tiff brings  trover  and  recovers.(2) 

11.  A,  residing  in  the  country,  purchased  goods  of  B  on  the 
7th  (or  17th)  of  April,  which  were  duly  sent  to  him  and  credit- 
ed to  B  in  his  books.  June  4,  A  became  bankrupt,  having  pre- 
viously, May  18th,  sent  the  goods,  without  B's  order  or  knoW" 

(1)  Mills  V  Ball,  2  B.  &  p.  457. 

(2)  Lovat  V.  Parsons,  Cowp.  6). 


Sect.  I.]     REsrixniNG  nY  mutual  agreement,  &c.  265 

ledge,  to  C,  for  B's  use.  June  G,  A  informed  B  by  letter  of 
this  fact,  stating  the  embarrassment  of  his  affairs,  that  he  was 
unwilling  to  have  the  property  applied  to  the  use  of  his  creditors, 
that  he  had  not  credited  B  with  the  goods,  but  they  were  sub- 
ject to  B's  order  in  the  hands  of  C.  June  9,  the  plaintiffs  be- 
came assignees  of  A.  June  13,  B  received  A's  letter,  and  im- 
mediately assented  to  the  return  of  the  goods.  In  an  action  of 
trover  by  the  plaintiffs  against  B,  held,  the  sale  was  rescinded  by 
the  delivery  to  C,  and  the  suit  could  not  be  maintained. (1) 

12.  Goods  were  consigned  to  A  in  London,  but,  before  their 
arrival  in  the  r'ver,  he  became  insolvent.  At  the  solicitation  of 
the  captains,  A  gave  a  verbal  order  to  his  sou  to  take  the  goods 
from  the  vessels,  and  store  them  at  a  wharf  which  he  sometimes 
used  for  that  purpose,  his  own  warehouse  being  in  the  city. 
At  the  same  time  he  declared  that  he  should  not  take  the  pro- 
perty, but  this  declaration  was  not  communicated  either  to  the 
wharfingers  or  the  vendor.  The  goods  were  accordingly  un- 
loaded and  piled  away.  A  becoming  bankrupt,  the  consignor 
stopped  them  as  in  transitu,  antl  A's  assignees  bring  trover 
against  the  wharfingers.  At  the  trial,  the  question  left  to  the 
jury  was,  whether  the  wharfingers  took  possession  for  A  as  his 
agents,  The  Court  subsequently  decided,  that  the  question  left 
to  the  jury  should  have  been,  whether  the  wharfingers  took  pos- 
session for  A  as  oicner ;  or  whether,  supposing  the  wharfingers 
to  be  A's  agents,  they  received  the  goods  for  his  benefit,  or  mere- 
ly to  keep  for  the  vendor.  It  was  also  held,  that  A's  declara- 
tion against  accepting  the  goods  was  properly  admissible  in  ev- 
idence. (2) 

13.  A  sold  goods  to  B,  who  resided  and  traded  in  America, 
but  had  a  place  of  business  in  London.  On  the  3d  and  5th  of 
May,  the  goods  were  delivered  to  C,  B's  clerk  in  London,  for 
shipment  to  B  ;  and  were  sent  by  C  to  the  defendant,  a  packer, 
to  be  packed  for  this  purpose.  April  9th,  B  wrote  to  C,  inform- 
ing him  of  his  (B's)  insolvency,  and  ordering  that  any  goods 
purchased  should  be  returned.     May  18th,  C  received   this  let- 

(1)  Atkin  V.  Barwick,  Str.  165. 

(2)  James  v.  Griffin,!  Tyrwh.  A-  Or     !  (ft 

34 


266  REsciNriNG  OF  SALES.  [Chap.  X. 

ter,  and  about  9  o'clock  P.  M.  showed  it  to  A,  who  said  he  was 
ready  to  receive  back  the  goods  On  that  and  the  next  day,  the 
goods  were  attached  as  B's.  Having  demanded  them  from  the 
defendant,  A  brings  trover  against  him.  Held,  the  sale  was 
rescinded,  and  the  action  would  lie.(l)* 

14.  A  shipped  goods  from  Newcastle  to  London  to  the  order 
of  B.  Before  arrival  of  the  goods,  B  sent  word  to  A  that  he 
was  in  failing  circumstances,  and  would  not  claim  the  property 
when  it  should  arrive.  A  replied,  without  particularly  mention- 
ing the  goods,  ''if  I  find  you  an  honest  man,  you  shall  have 
every  indulgence  from  me ;"  and  immediately  proceeded  to 
London,  and  applied  for  the  goods,  tendering  the  freight  and 
charges,  at  the  wharf  of  C,  where  they  had  arrived,  being  the 
usual  landing  for  B's  goods,  and  at  which  they  usually  re- 
mained till  called  fw.  C  refused  to  deliver  the  goods,,  except  on 
condition  of  A's  paying  him  a  general  balance  due  from  B  for 
past  wharfage.  Held,  these  facts  showed  a  rescinding  of  the 
contract  before  the  goods  reached  their  destination,  and,  as 
there  was  no  proof  of  their  not  coming  into  the  hands  of  C  as 
A's  property,  C  had  no  right  to  retain  them  against  A,  although 
by  virtue  of  a  usage  he  might  have  done  it  against  B.  C's  only 
claim  must  be  under  B,  but  A's  title  was  paramount  to  B's.  C 
had  a  bare  authority  to  receive  the  goods,  dated  before  B  was 
suspected  of  insolvency,  and  which  could  not  avail  against  A's 
subsequent  claim.  (2) 

15.  Where  a  vendor  receives  property  in  part  payment,  with 
the  agreement,  that,  unless  the  balance  be  paid,  he  may  retain 
such  property  and  also  receive  back  the  thing  sold  ;  a  subse- 
quent promise  to  restore  the  property  is  not  conclusive  against 
him  of  a  rescinding  of  the  bargain. 

16.  A  purchased  a   horse  from  B,  and  delivered  him   a  note 

(1)  Saltev.  Field,  5T.  R.  211.     See  6  T.  R.  80.    Cowp.  123.    2E.117 

(2)  Richardson  v.  Goss,  3  B.  &  P.  119. 

*  Another  creditor  of  B,  receiving  the  same  information  given  to  A,  declined  taking 
back  the  goods  sold,  under  the  belief  that  C  had  no  authority  to  return  them  ;  and  at~ 
tached  them  in  the  packer's  hands.  Held,  he  thereby  affirmed  the  sale,  and  could  not 
claim  the  goods.     Smith  v.  Field,  5  T.  R.  402. 


Sect.    I.]       RESCINDINU    BY    MUTUAL    AGREEMENT,    &C.  267 

signed  by  C  in  part  payment.  It  was  agreed  between  the  par- 
ties to  the  sale,  that,  unless  A  should  within  a  certain  time  give 
security  for  the  balance,  he  should  restore  the  horse  and  B 
should  become  owner  of  the  note.  A  did  not  give  such  secu- 
rity, but  returned  the  horse  and  demanded  the  note.  B  declin- 
ed delivering  up  the  note  at  that  time,  but  afterwards  said  that 
A  might  have  it  if  he  would  come  for  it,  but  that  he  (B)  should 
sue  him  for  damages.  A  again  demanded  the  note,  B  refused 
to  give  it  up,  and  A  brings  assumpsit  for  the  amount  of  it. 
Held,  by  the  above  contract,  the  note  had  become  the  property 
of  B  ;  that  the  subsequent  agreement  to  re-deliver  was  without 
consideration,  and  therefore  void  as  a  promise,  and  not  conclu- 
sive evidence  of  a  rescinding  of  the  bargain.  (1)* 

17.  A  sale  may  be  rescinded  in  part,  or  in  relation  to  some 
only  of  its  terms  ;  and  such  rescinding  need  not  be  in  writing, 
though  the  original  agreement  is  a  written  one. 

18.  A  agreed  in  writing  to  purchase  from  B  three  hundred 
hogs  of  bacon,  to  be  delivered  at  certain  times  and  in  speci- 
fied quantities.  A  part  having  been  delivered,  A  requested  B 
not  to  press  the  delivery  of  the  rest,  the  sale  being  then  dull ; 
to  which  B  assented.  Held,  this  was  only  a  parol  dispensation 
of  performance  in  regard  to  the  times  of  delivery,  and  there- 
fore not  invalid,  either  by  the  statute  of  frauds,  or  the  rule  ex- 
cluding parol  evidence  to  control  written  instruments ;  and 
therefore,  that  A  was  liable  for  not  accepting  the  remainder  of 
the  property  in  a  reasonable  lime  after  the  above  parol  con- 
tract. (2) 

19.  So,  where  there  is  an  agreement  for  the  sale  of  goods, 
to  be  manufactured,  and  alterations  or  additions  are  afterwards 
provided  for,  it  is  not  necessary  that  the  latter  should  be  sepa- 
rately agreed  upon  in  writing.       But,  under  some   circumstan- 


{!)  Larabee  v.  Ovit,  4  Verm.  45. 
(2)  Cuff  V.  Penn,  1  M.  &  S.  21. 


*  It  was  furthei-  held,  iliat  ihe  contract  was  not  void  as  a  gambling  transaction. 
There  was  no  deposit  of  the  note  ;  subject  to  any  fuluie  casualty  or  event.  A  had 
possession  of  the  hoise,  and  might  either  use  or  sell  him,  while  B,  being  out  of  posses- 
sion, could  do  neither.     Hence  the  contract  was  a  fair  one. 


268  RESCINDING    OP    SALES.  [Chap.    X. 

ces,  the  same  acts  are  necessary  to  rescind,  as  to  make,  the  bar- 
gain. Thus  it  has  been  held,  that  a  re-cxchange  of  personal 
property  has  all  the  qualities  of  a  sale,  to  which  payment  or 
delivery  is  an  essential  circumstance.  Without  this,  the  trans- 
action is   a   mere  executory  agreement  and  passes  no  proper- 

ty-(i) 

20.  A  and  B  made  an  exchange  of  horses,  the  former  re- 
ceiving the  horse  of  the  latter.  The  same  day,  B,  thinking 
himself  cheated  in  the  bargain,  made  complaint  to  A  according- 
ly, and  they  thereupon  agreed  to  rescind,  upon  B's  giving  A 
three  bushels  of  wheat ;  but  there  was  no  re-delivery,  and  A 
sold  B's  horse  to  C.  B  was  previously  informed  where  posses- 
sion of  his  horse  was  to  be  had,  but  made  no  attempt  to  obtain 
possession  or  to  perform  his  own  agreement  for  several  •  weeks ; 
whereas  C  took  the  horse  a  day  or  two  after  the  bargain  was 
rescinded.  B,  having  tendered  the  wheat  and  demanded  his 
horse  from  C,  brings  replevin  against  him.  Held,  the  action 
did  not  lie.  The  re-exchange  was  not  effectual,  it  seems,  even 
between  the  parties  themselves.  It  was  not  to  put  them  in  statu 
quo,  because  the  wheat  made  a  new  ingredient  in  the  contract. 
Hence  delivery,  at  least  on  one  side,  was  necessary, (2) 


Section  H. — rescinding  by  the  vendor. 

1.  It  is  said,  that  if  a  buyer  does  not  carry  away  the  goods  iii 
reasonable  time,  the  seller  may  charge  him  for  storage,  or  bring 
an  action  against  him  for  not  removing  them,  if  he  is  thereby 
injured ;  but  that  he  cannot  on  this  ground  put  an  end  to  the 
contract  and  re-sell  the  goods  to  others,(3)  But,  in  case  of  a 
sale  in  a  market  or  shop,  where  it  is  unusual  to  give  credit ;  if 
no  credi*  be  given  nor  delivery  made,  and  the  vendee  go  away 
without  paying;   the  vendor  may  rescind  the  sale,  and  sell   the 


(1)  H^adlj  V.  Maclaine,  4  M.  tfc  Scotl,  340. 
("i)  Hazard  v.  Hamlin,  5  Watts,  201, 
(3)   Greavc.<  v.  Ashlin,  3  Camii    426 


Sect.    II. j  nESCINDING    BY    THE    VENDOR.  2G9 

goods  anew.  And  it  is  further  held,  that  if  the  contract  is  com- 
pleted, but  the  vendee  refuses  to  take  and  pay  for  the  goods,  the 
vendor  may  re-sell  them,  and  call  upon  the  other  to  make  up 
the  loss  thereby  sustained. (1) 

2.  In  case  of  the  sale  of  goods  by  a  broker  in  London,  to  be 
paid  for  by  a  bill  of  exchange  ;  the  vendor,  if  he  doubts  the  sol- 
vency of  the  vendee,  may  annul  the  contract  in  reasonable  time  ; 
that  is,  so  soon  as  he  can  inquire  into  the  vendee's  circumstan- 
ces. Five  days  were  held  to  be  an  unreasonable  delay.  The 
question  turned  upon  usage.  (2) 

3.  A  having  agreed  to  deliver  goods  to  B,  B  afterwards  made 
a  composition  with  his  creditors  Held,  a  sufficient  defence  to 
an  action  for  non-delivery,  if  the  plaintiff,  B,  was  in  such  a  sit- 
uation that  he  would  be  unable  to  pay.  (3) 

4.  If  a  vendor,  in  case  of  fraud,  after  full  knowledge  of  ma- 
terial facts,  affirms  the  sale,  he  cannot  afterwards  disaffirm  and 
avoid  it.  Otherwise,  if  he  affirms  it  before  discovery  of  the 
fraud,  or  of  its  full  extent  and  character.  The  fact  of  his  bring- 
ing suits  upon  other  and  similar  contracts  is  no  estoppel.  The 
question  is  for  the  jury. (4) 

5.  There  is  no  case,  where  o:ie  party  can  rescind  a  sale  so  as 
to  divest  the  property  from  the  other,  except  where  he  discovers 
fraud  in  the  agreement,  and  can  restore  what  he  has  received 
in  as  good  plight  as  it  was  originally. (5) 

6.  A  vendor  may  rescind  the  sale  for  fraud,  though  the  rep- 
resentations were  made  at  a  time  previous  to  such  sale,  if  it  was 
founded  upon  this  inducement.  The  case  is  diffisrent  from  that 
of  a  warranty,  which  must  make  part  of  the  contract  of  sale.(G)* 


(1)  Long,  241.     Brod.   Sup.  to  Stair,  853— 7.     Maclean  v.  Dunn,  1  M.  &.  P.  761. 

(2)  Hodgson  v.  Davies,  2  Camp.  530 

(3)  Reader  v.  Knatchbull,  5  T.  R.  218  u. 

(4)  Mackinley  v,  McGregor,  3  Wliart.  369. 

(5)  Allen  v.  EJgerton,  3  Verm.  445. 

(6)  Seaver  v.  Dingley,  4  Greenl.  306. 


*  So,  where  a  vendor  brings  an  action  upon  the  vendue's  bond  given  for  the  price, 
tlie  defendant  may  offer  evidence  of  the  plaintiff's  oral  declarations  prior  to  the  writ- 
ten agreement,  for  the  purpose  of  showing  fraud.     It  would  be  otherwise  with  respect 


270  RESCINDING    OF    SALES.  fChap.    X. 

7.  It  is  said,  that  where  goods  are  obtained  by  fraud,  the  ven- 
dor may  treat  the  sale  as  a  nullity,  and  reclaim  them,  though 
the  term  of  credit  has  not  expired  ;  and  even  from  a  bona  fide 
second  purchaser  without  notice  of  the  fraud. (1)  (But  see  s. 
10.     See  also  chap.  XI.  s.  1.) 

8.  A  vendor,  after  delivery,  cannot  rescind  the  sale  on  the 
ground  of  fraud,  without  proving  deceptive  assertions  and  false 
representations  fraudulently  made,  to  induce  him  to  part  with 
the  property.  The  insolvency  of  the  vendee,  and  immediate  li- 
ability of  the  goods  to  attachment,  though  known  to  him  and 
concealed  from  the  vendor,  furnish  no  sufficient  cause  to  re- 
scind. It  seems,  there  must  be  an  indictable  fraud,  or  at  least 
sufficient  foundation  for  the  action  of  deceit,  and  for  the  recov- 
ery of  damages,  in  case  the  vendor  should  not  rescind.  It  is 
certain  that  there  must  be  all  the  evidence  of  fraud,  which  would 
be  necessary  to  sustain  an  action  against  any  third  person,  who 
had  induced  the  vendor  to  give  credit  to  the  vendee. (2) 

9.  Where  goods  are  obtained  by  fraudulent  pretences,  the 
vendee  sells  them  to  one  having  notice  of  the  fraud,  and  the  ven- 
dor replevies  them  from  him  ;  it  is  no  defence  to  this  suit,  that 
the  second  purchaser  has  been  summoned  as  trustee  of  the  first, 
in  an  action  still  pending  :  because,  if  the  plaintiff  in  replevin 
prevails,  the  party  sumtnoned  as  trustee  may  disclose  the  judg- 
ment against  him,  as  a  bar  to  his  liability  in  the  trustee  pro- 
cess. (3) 

10.  Where  goods  are  obtained  by  means  of  fraudulent  repre- 
sentations of  the  vendee,  and  afterwards  attached  by  a  creditor 
of  the  latter,  whose  claim  accrued  after  the  sale;  the  vendor 
cannot  maintain  replevin  against  the  attaching  officer.  If  apart 
of  the  debt  was  incurred  before,  and  a  part  after  the  sale,  the 
attachment  shall  prevail  over   the  vendor's  claim,  only  to   the 


(1)  Seaver  v.  Dinglcy,  4  Grcenl.  306. 

(2)  Gross  V.  Peters,  1  Greciil.  378. 

(3)  Seaver  v.  Dingley,  4  Greenl.  306. 


to  warranty.  Such  declarations  are  immaterial,  unless  relied  on  by  the  vendee.  But 
he  is  presumed  to  have  relied  on  ihein,  if  the  contrary  be  not  shown.  Ilolbrook.  v. 
Bun,  22  Pick.  546. 


Sect.    II.]  RESCINOrNG    BY    THE    VENDOR.  271 

amount  of  the  latter  portion,  and  the  costs.  But,  as  the  proper- 
ty is  indivisible,  the  attachment  is  a  bar  to  the  replevin  suit, /or 
the  tchole  ;  and,  if  the  officer  afterwards  sells  more  than  enough 
of  the  property,  to  satisfy  that  portion  of  the  debt  incurred  after 
the  sale,  the  plaintiff  vi^ill  have  another  remedy. (I) 

11.  In  case  of  an  exchange  between  A  and  B,  if  A  elects  to 
rescind,  upon  the  ground  of  fraud  on  the  part  of  B,  he  cannot 
maintain  an  action,  merely  by  notifying  B  to  come  and  receive 
back  his  goods;  but  must  actually  return  them. (2) 

12.  In  case  of  sale,  with  the  privilege,  allowed  to  the  vendor, 
of  rescinding  within  a  certain  time,  if  he  does  not  rescind  with- 
in that  time,  the  sale  is  absolute.  Thus,  A  mortgaged  certain 
personal  property  to  B,  but  retained  possession  of  it,  and  after- 
wards made  a  second  sale,  for  valuable  consideration,  accompa- 
nied by  delivery,  to  C,  who  was  ignorant  of  the  mortgage.  It 
was  agreed  that  C  should  make  payment,  a  part  in  six,  the  rest 
in  nine  months  ;  and,  if  he  should  fail  in  making  the  first  pay- 
ment, when  due,  A  was  to  have  the  right  of  taking  back  the  pro- 
perty. After  ten  months,  C  died  insolvent,  and  A,  without  per- 
mission from  any  one,  took  possession  of  the  goods,  and  D,  the 
defendant,  a  constable,  afterwards  seized  them  under  a  process 
against  A.     Held,  B  could  not  maintain  trespass  against  D.(3) 

13.  Besides  the  right  of  rescinding  the  contract,  the  vendor 
may  under  some  circumstances  resume  the  ownership  of  the 
property  sold,  not  under  his  own  former  title,  but  as  agent  for 
the  vendee.     This  principle  has  been  stated  as  follows. 

14.  After  the  property  in  goods  sold  has  vested  in  the  vendee 
by  virtue  of  the  contract  and  part-delivery,  if  he  refuses  to  re- 
ceive the  remainder  upon  their  being  tendered,  with  notice  that 
the  vendor  intends  to  sell  them,  in  case  of  his  default,  and  hold 
him  responsible  for  the  deficiency  ;  the  vendor  has  a  right  to 
abandon  the  property,  or  to  dispose  of  it  bona  jide,  as  agent  of 
the  vendee,  to  the  best  advantage,  by  a  sale  at  auction,  and  tO' 
call   upon  the  vendee  for  the  amount  of  difference  betwfeen  the 

(1)  Gilbert  v.  Hudson,  4  Greenl.  345. 

(2)  Norton  V.  Young,  3  Greenl.  30.  Rutter  v.  Blake,  2  Har.  &  J.  353.  Ellis  v. 
Hamlen,  3  Taun.  52.    Cash  v.  Giles,  3  C.  &  P.  407.    Okell  v.  Smith,  1  Stark.  107. 

(5)  Patten  v.  Smith,  5  Conn.  196. 


272  KEsciNDiNG  OF  SALES.  [Chap.  X. 

proceeds  of  sale  ami  the  price  stipulated  in  the  contract.  The 
vendor  becomes  agent  or  trustee  of  the  vendee,  for  managing 
the  property  ;  and  must  necessarily  either  abandon  or  sell  it. 
The  case  is  like  that  of  abandonn)ent  of  a  vessel  insured,  which 
the  insurer  refuses  to  accept.  The  party  in  possession  then  be- 
comes agent  for  the  other,  and  by  exercising  the  right  to  sell 
docs  not  vi'aive  any  claim  upon  the  contract.(l) 

15.  The  vendor's  requesting  the  vendee  to  sell  the  goods  on 
his  (the  vendor's)  account,  is  a  rescinding  of  the  sale,  and  bars 
a  suit  for  the  price. 

16.  The  vendee  of  goods  refusing  to  accept  them,  the  vendor 
requested  him  to  sell  them  on  his  (the  vendor's)  account ;  to 
which  the  vendee  assented,  if  he  should  be  able  to  do  it.  Not 
having  sold  the  goods,  the  vendor  sues  him  for  the  price.  Held, 
the  above  request  was  in  law  a  waiver  of  the  sale,  and  it  was 
not  to  be  left  to  the  jury  to  inquire,  whether  the  request  was 
made  under  an  ignorance  of  the  law,  and  an  impression  that 
the  plaintiff's  remedy  was  gone. (2) 

17.  Where  a  vendee  desires  to  rescind  the  sale,  but  the  ven- 
dor refuses  to  do  it,  and  sues  for  the  price  ;  this  is  conclusive 
against  his  right  to  bring  trover  afterwards  for  the  goods. 

18.  A  vendor  of  goods  sued  for  the  price  of  them,  in  the 
sheriff's  court,  by  attachment,  but  the  proceedings  were  stayed 
by  injunction  from  Chancery.  The  vendee  had  previously  de- 
sired to  rescind  the  sale,  but  the  vendor  would  not  consent  to 
do  it,  and,  after  notice  of  the  vendee's  bankruptcy,  claimed  the 
price.  The  vendor  then  brings  trover.  Held,  the  action  would 
not  lie.  The  only  question  was,  whether  the  sale  had  been  re- 
scinded, and  the  facts  conclusively  showed  it  had  not. (3) 

19.  After  receiving  a  part  of  the  consideration  without  ob- 
jection, the  vendor  cannot  rescind  without  some  default  in  the 
vendee. 

20.  A  contracted  with  B  to  work  in  a  factory,  in  considera- 
tion of  which    B  sold   to   him  certain  property.     The  contract 


(1)  S.ai:ds  V.  Taylor,  5  John.  395. 
<2)  Gomciy  v.  Bond,  3  M.  &  S.  378 
(3)  Smuli  V.  FivM,  5  T.  R.  102. 


Sect.    II.]  UF.SCINDING    BY    THE    VENDOR.  273 

continued  to  run,  and  the  stipulated  labor  was  performed  by  A, 
for  several  weeks.  Held,  B  could  not,  after  this,  rescind  the  bar- 
gain and  divest  the  property  from  A,  more  especially  if  the  cir- 
cumstances would  not  allow  his  being  put  in  statu  quo.{\) 

21.  In  connexion  with  the  right  of  a  vendor  to  rescind  the 
sale,  may  be  considered  the  question,  Avhat  circumstances  will 
justify  non-delivery  of  the  goods. 

22.  The  vendor  of  goods  contracted  to  ship  them  at  St.  Pe- 
tersburg on  a  certain  day  in  particular  vessels.  The  goods, 
while  on  board  of  lighters  which  were  taking  them  to  the  ships, 
were  seized  by  the  Russian  government,  and  the  ships  cut  their 
cables  and  put  to  sea,  to  avoid  an  embargo.  Held,  these  facts 
were  no  defence  to  an  action  for  not  delivering  the  goods.(2) 

23.  A  contract  was  made  in  London,  for  the  sale  of  tallow 
from  a  certain  ship  on  her  arrival,  to  be  taken  from  the  king's 
landing-scale^  and,  in  case  the  property  did  not  arrive  on  or  be- 
fore a  given  day,  the  contract  to  be  void.  The  vessel  contain- 
ing the  tallow  was  wrecked  on  the  coast  of  Scotland,  but  the 
cargo  was  saved,  and  might  have  been  forwarded  by  the  appoint- 
ed day;  but  the  vendor  disposed  of  it  at  the  place  where  the 
shipwreck  took  place.  The  vendee  did  not  offer  indemnity  for 
bringing  the  tallow  to  London.  Held,  he  could  not  maintain  aa 
action  for  its  non-delivery.(3j 


Section  III. — rescinding  by  the  rENOEB. 

1.  Where  one  sells  a  different  interest  from  that  wnich  he 
pretends,  especially  if  the  contract  is  founded  in  ignorance  and 
fraud,  the  vendee  may  return  the  chattel  to  the  vendor  immedi- 
ately after  a  discovery,  and  thus  rescind  the  bargain  ;  and,  under 
these  circumstances,  no  action  will  lie  for  the  price.  Thus  the 
owner  of  a  slave  in  New- York,  by  the  laws  of  which  there  might 

(1)  Allen  V.  Edgcrton,  3  Verm.  442. 

(2)  Splidt  V.  Health,  2  Camp.  57  n, 
^3)  Idle  V.  Thornton,  3  Camp.  274. 

35 


274  RESCINDING  OF  SALES.  [Chap.  X. 

be  a  written  but  not  a  v.erbal  manumission,  having  agreed  in 
writing  to  manumit  him  at  a  certain  time,  deposited  the  agree- 
ment with  a  third  person,  and  sold  the  slave  absolutely,  for  his  full 
value,  without  notice  of  the  written  agreement,  although  the  ven- 
dee was  informed  that  the  slave  had  been  promised  his  freedom 
in  eight  years.  The  vendor  brings  an  action  for  the  price  of 
the  slave.  Held,  it  could  not  be  sustained. (1)  So  where  arti- 
cles are  ordered,  of  a  certain  quality  or  description,  or  for  a  par- 
ticular purpose,  and  prove  to  vary  essentially  from  the  order  ; 
the  vendee,  after  a  reasonable  time  for  inspection  and  trial,  may 
return  them,  and  Recover  back  the  price.(2) 

2.  Where  there  is  a  parol  order  for  goods,  which  are  deliver- 
ed, subject^to  the  vendee's  approval,  he  is  bound  to  take  them, 
unless  he  refuse  to  accept  in  reasonable  time,  or  unless  the  arti- 
cles are  unfit  for  use,  in  which  case  the  order  would  not  be  com- 
plied with.  (3) 

3.  It  is  said,  when  there  is  any  objection  to  an  article  of  sale, 
eommon  justice  and  honesty  require  that  it  should  be  returned 
at  the  earliest  period,  and  before  it  is  so  changed  as  to  render  it 
impossible  to  ascertain  by  proper  tests,  whether  the  article  is  of 
the  quality  agreed  for. (4) 

4.  Where  a  vendee  reserves  the  right  to  rescind  the  sale,  if 
he  shall  be  unable  to  sell  the  property  or  sick  of  his  bargain  ; 
the  question  what  is  a  reasonable  time  for  rescinding  is  a  ques- 
tion of  law  for  the  Court.  Two  months  have  been  held  to  be 
more  than  a  reasonable  time. (5) 

5.  So,  where  goods  delivered  do  not  conform  to  the  order 
given  for  them,  the  vendee  is  still  bound  to  pay  the  stipulated 
price,  if  he  fail  to  return  them  in  reasonable  time,  and  use  them 
as  his  own.  As  where  the  plaintiff  was  to  supply  a  complete 
chandelier,  sufficient  to  light  a  certain  room,  and  the  defendant 
kept  it,  though  wholly  insufficient  for  this  purpose,  six  months. (6) 

6.  The  plaintiff  purchased  of  the  defendant  a  chaise  and  bar- 
It)  Ketletas  v.  Fleet,  7  John.  324. 

(2)  Siieet  V.  Blay,  2  B.  &  Ad.  460.     Gompertz  v.  Denton,  1  Cr.  &  M.  207. 

(3)  Coleman  v.  Gibson,  1  Mood.  &  R.  168.     1  T.  R.  136.     1  Camp.  190. 

(4)  Per  Li.  Ellenborough,  Hopkins  v.  Appleby,  1  Stark.  479. 
(3)  Kingsley  v.  Wallis,  2  Shepl.  57. 

(6)  Milner  v.  Tucker,  1  C.  &  P.  15. 


Sect.    III.]  KESCINDING    BY    THE    VENDEE.  ,      275 

ness,  on  condition  that  he  might  return  them,  in  case  his  wife 
did  not  approve  of  them,  paying  a  certain  sum  per  day  for  their 
use.  The  wife  not  approving  of  the  articles,  the  plaintiff  return- 
ed them  after  three  days,  tendering  the  stipulated  sum  for  the 
use  of  them  ;  but  the  plaintiff  refused  to  accept  them  or  restore 
the  price  paid.  Held,  by  the  plaintiff's  offer  the  contract  was 
ended,  and  he  might  sue  in  money  had  and  received  for  the 
price.(l) 

7.  The  defendant  ordered  from  the  plaintiff  a  threshing-ma- 
chine. The  machine  delivered  was  unfit  for  use,  but  the  de- 
fendant kept  it  several  years,  though  he  used  it  only  twice,  and 
never  notified  the  vendor  to  take  it  back.  Held,  this  was  a 
waiver  of  any  objection  to  the  quality,  and  the  defendant  was  li- 
able for  the  price.  (2) 

8.  Where  a  vendee  allows  the  article  purchased  to  remain  on 
his  premises  for  two  months  without  examination  ;  its  unfitness 
for  use  is  no  defence  to  a  suit  for  the  price,  unless  some  deceit 
was  practised  ;  more  especially  if  after  the  end  of  the  two  months 
he  has  promised  payment. (3) 

9.  The  plaintiff  sold  to  the  defendant  a  quantity  of  barilla, 
warranting  it  to  be  of  a  certain  quality.  The  defendant  used 
the  barilla  in  eight  successive  boilings,  consuming  the  whole 
quantity  sold,  and  made  no  complaint  in  regard  to  it.  Held,  as 
it  was  no  longer  possible  for  the  plaintiff  to  apply  tests  for  the 
purpose  of  ascertaining  ihe  quality,  the  whole  haviug  been  used, 
or  to  obtain  the  opinion  of  intelligent  men,  which  he  might  have 
done,  if  the  defendant  had  givenhim  notice  ;  the  latter  was  bound 
to  pay  the  stipulated  price,  notwithstanding  any  inferiority  in  the 
quality  of  the  article. (4) 

10.  In  June  1791,  A  agreed  to  sell  B,  for  a  certain  price,  all 
his  cord  wood.  It  was  the  custom,  in  such  case,  for  the  vendor 
to  cut  off  the  boughs  and  trunks,  and  cord  the  wood,  then  for 
the  vendee  to  re-cord  it,  whereupon  it  became  the  property  of 
the  latter.     A  cut  60  cords,  corded  ten,  and  B  re-corded  half  a 

(1)  Somers  v.  Barrett,  1  T.  R.  133.     Soe  Doug.  23.     1  N.  R,  331. 

(2)  Cash  V.  Giles,  3  C.  &  P.  407. 

(3)  Percival  v.  Blake,  2C.Si.P.  514. 

(4)  Hopkins  v.  Appleby,  1  Stark.  477. 


276  UEsciNDiNG  OF  SALES.  [Chap.  X. 

cord  and  measured  the  rest.  In  March  1792,  a  part  of  the  price 
was  paid,  but  A  corded  no  more  of  the  wood.  B  brings  an  ac- 
tion to  recover  back  the  money  paid.  Held,  the  acts  of  B  did 
not  amount  to  a  pan  execution  of  the  contract ;  that  it  had  fail- 
ed of  complete  fulfilment  through  the  fault  of  A,  and  therefore 
the  action  was  sustained. (1) 

11.  The  plaintiff  agreed  with  the  defendant,  to  manufacture 
for  him  certain  utensils  of  trade  at  a  specified  price,  and  that 
they  should  be  sound  and  made  of  the  best  materials.  The  ar- 
ticles having  been  delivered,  in  an  action  for  the  price,  the  de- 
fendant contended  that  they  were  unfit  for  the  intended  use. 
Held,  it  was  a  question  for  the  jury,  whether  the  defendant  had 
used  them  longer  than  was  necessary  to  make  a  fair  trial  of  their 
quality.  If  he  had  not,  and  if  the  utensils  were  unfit  for  the 
use  proposed,  the  vendor,  upon  notice,  would  be  bound  to  take 
them  away,  and  they  would  remain  at  his  risk.  But  if  the  ven- 
dee retain  them,  without  notice  to  the  vendor,  he  is  liable  for 
the  value  of  the  materials. (2) 

12.  An  article  sold  by  sample  did  not  correspond  with  the 
sample  exhibited.  The  vendee,  after  seeing  fresh  samples  infe- 
rior in  quality  to  that  by  which  he  purchased,  put  up  the  article 
for  sale  at  an  auction  of  the  East  India  Company,  as  the  vendor 
had  agreed  he  might  do,  at  a  limited  price.  No  bid  being  ob- 
tained for  this  amount,  the  vendee  bought  in  the  article,  but  in 
the  name  of  the  vendor,  to  avoid  payment  of  a  duty.  Held,  by 
these  proceedings  the  vendee  had  lost  the  right  to  repudiate  the 
contract,  on  the  ground  of  variance  from  the  sample,  so  far  as  it 
furnished  any  defence  to  a  suit  for  the  price,  though  he  might 
have  a  remedy  over  against  the  vendor.  The  vendee  chose  to 
take  the  chance  of  makingga  profit  on  the  re-sale.  The  contract 
was  not  wholly  void,  and  he  affirmed,  by  acting  on  it.  Nor  did 
it  make  any  difference,  that  the  goods  were  never  transferred 
into  his  name. (3) 

13.  Where  goods  are  sold  to  order  and  afterwards  returned, 
the  vendor,  in   a  suit   for  the  price,  must  prove  that  they  are 

vl)  Giles  V.  Edwards,  7  T.  R.  181.    2  Y.  &,  J.  "JSS,  4.     See  Hunt  v.  Silk,  5  E.  449. 

(2)  Okeil  V.  Smith,  I  Stark.  107. 

(3)  Parker  v.  Palmer,  4  B.  St  A.  386. 


Sect.    III.]  RESCINDING    15Y    THE    VENUEE.  !277 

made  conformably  to  the  order.  The  burden  of  proof  is  on  him, 
and  not  on  the  defendant  to  show  the  contrary.  As  where  a 
riding-habit  was  made,  and  returned  upon  the  ground  that  it 
did  notfit.(l) 

14.  Where  the  goods  delivered  are  of  the  general  kind  order- 
ed, though  bad  and  unfit  for  use,  the  vendee,  having  paid  the 
price,  cannot  recover  it  in  an  action  for  money  had  and  receiv- 
ed, as  upon  a  total  failure  of  consideration.  As  where  ^sA  were 
sold,  though  they  proved  to  be  worm-eaten  and  putrid.  The 
remedy  must  be  a  special  action.  It  was  said,  that  if  saw-dust 
had  been  delivered  instead  of  fish,  the  former  action  might  be 
sustained. (2) 

15.  Where  a  party  who  has  contracted  to  make  and  sell  an 
article  within  a  certain  time  violates  his  contract,  the  proposed 
vendee  may  rescind  the  bargain,  and,  if  he  does,  he  acquires  no 
title  to  the  property,  and  by  taking  it  subjects  himself  to  an  ac- 
tion. 

16.  The  plaintiff's  intestate  agreed  to  make  a  wagon  for  the 
defendant,  to  be  delivered  in  the  spring  of  1827  and  paid  for  in 
mutton,  which  was  accordingly  supplied.  The  defendant  se- 
lected wheels  at  the  shop  of  the  intestate,  and  marked  them  with 
his  name,  hut  there  was  no  evidence  of  their  being  used  for  the 
wagon.  The  intestate  died  in  May  1828.  Before  his  death,  the 
wagon  was  set  up  in  the  yard  of  his  dwelling-house,  and,  once 
before  and  again  after  his  death,  painted  by  his  son,  who  trans- 
acted business  for  him  during  his  last  sickness.  A  few  days  be- 
fore his  death,  the  intestate  gave  notice  to  the  defendant,  that 
the  wagon  was  ready  whenever  he  should  choose  to  take  it.  In 
November  1827,  the  defendant  gave  his  account  for  mutton  to 
an  attorney  for  collection,  directing  him  to  receive  the  wagon, 
which  he  accordingly  demanded  ;  but,  not  being  delivered,  he 
brought  an  action  upon  the  account,  agreeing  however  to  dis-^ 
continue  upon  delivery  of  the  wagon.  The  intestate's  estate 
was  insolvent.  In  November  1828,  the  attorney,  without  di- 
rections from  the  defendant,  and  ignorant  that  he  had  taken  the 
wagon,  which  he  really  had,  presented  the  account  to  the  com- 

(1)  Haydcn  v.  Hayward,  1  Camp.  180. 

(2)  Foriune  v.  Lingham,  2  Camp.  416. 


278  RKsciNDiNG  OF  SALES.  [Chap.  X. 

missioners  of  insolvency,  who  allowed  it.  The  attorney  said, 
if  the  plaintiff  would  give  up  his  claim  to  the  wagon,  he  would 
not  present  the  account,  but  the  plaintiff  declined  doing  so.  In 
1829,  the  suit  was  discontinued.  The  plaintiff  brings  trover 
for  the  wagon.  Held,  the  action  should  be  sustained.  The  de- 
fendant had  acquired  no  title  to  the  wagon.  He  was  bound  by 
the  doings  of  his  attorney.  He  lawfully  might,  and  did,  rescind 
the  contract.  The  agreement,  which  v/as  merely  exe cut oiy,  was 
broken  by  the  intestate's  neglect  to  build  the  wagon  within  the 
stipulated  time  ;  and  for  this  breach  the  defendant  had  his  rem- 
edy by  action.  He  might  waive  his  right  of  action  and  accept 
the  wagon,  but  had  no  right  to  take  it  without  the  plaintiff's  con- 
sent.    The  taking  therefore  was  tortious. (I) 

17.  One  party  to  a  contract  cannot  rescind  it,  if  circumstan- 
ces have  so  changed,  that  it  is  impossible  for  both  parties  to  lie 
reinstated  in  their  situation  at  the  time  the  contract  was  made. 
Thus,  if  the  title-deeds  of  a  ship  have  been  delivered  to  the  ven- 
dee, and  he  has  pledged  them  to  a  third  person,  and  taken  pos- 
session of  the  vessel ;  he  cannot  rescind  the  sale  and  recover 
back  the  price  which  he  has  paid,  though  the  vendor  refused  to 
give  a  bill  of  sale  or  refund  the  money.  So  the  vendee  of  a  pa- 
tent, which  proves  to  be  void,  if  he  has  used  it  to  his  advantage, 
cannot  recover  back  the  price. (2) 

18.  A  bidder  at  auction  may  recall  his  bid  at  any  time  before 
the  hammer  is  knocked  down. (3) 

19.  Where  a  vendee  agrees  to  pay  the  vendor  by  selling  him 
other  property,  and  violates  the  agreement,  this  is  a  rescinding 
of  the  bargain  by  ihe  vendee,  and  authorizes  the  vendor  to 
bring  an  action  for  the  price. 

20.  A  purchased  of  B  two  ploughs,  the  value  of  which  was 
allowed  B  on  settlement  of  accounts.  B  afterwards  refused  to 
deliver  the  ploughs  and  converted  them  to  his  own  use.  Held, 
A  might  treat  the  agreement  as  rescinded,  and  recover  back  the 
stipulated  price  in  an  action  for  money  had  and  received  ;  upon 


(1)  Bennett  V.  Piatt,  9  Pick.  558. 

(2)  5  E.  449.     Bccd  v.  Blandford,  2  Y.  &  J.  284.     Brindloy  v.  Tibbcls,  7  Greenl. 
70.     Taylor  v.  Haip,  1  N.  R.  260. 

(3)  Payne  v.  Cave,  3  T.  R.  148.     lb.  653. 


Sect.    III.]  RESCINDING    BY    THE     VENBEE.  279 

the  ground  that   B  had  received  monei/'s  toortJi  to  the  amount 
claimed. (1) 

21.  In  case  of  sale  with  warranty,  on  an  agreement  that  the 
purchaser  may  return  the  article,  (if  dissatisfied),  a  mere  q^er  to 
return,  whether  accepted  or  not,  rescinds  the  bargain,  and  is  ei- 
ther a  defence  to  a  suit  for  the  price,  or  enables  the  vendee  to 
recover  it,  if  paid.  The  same  rule  applies  to  an  absolute  sale, 
if  the  vendor  consents  to  take  back  the  thing  sold,  uncondition- 
ally. But  without  such  consent  the  contract  remains  open,  and 
the  vendee  can  maintain  an  action  only  upon  the  warranty,  un- 
less the  vendor  knew  the  article  to  be  unsound,  and  the  vendee 
offered  to  return  it  in  reasonable  time.(2) 

22.  Where  a  party  exercises  the  right  of  rescinding  a  sale,  he 
must  rescind  in  toto,  if  at  all.  He  will  not  be  allowed  to  reclaim 
the  property,  and  also  recover  damages  for  breach  of  contract. 
Thus,  A  exchanged  with  B  oxen  previously  mortgaged  by  the 
former,  though  not  delivered  to  the  mortgagee  ;  not  disclosing  the 
mortgage.  B  gave  $10  as  boot,  which  he  did  not  return  or  of- 
fer to  return,  but  claimed  to  retain,  because  the  oxen  which  he 
received  had  risen  in  value  by  good  treatment,  while  the  others 
had  been  hardly  worked.  Held,  B  might  treat  the  exchange  as 
fraudulent;  but  that  it  was  merely  voidable,  not  void,  and  he 
could  not  both  reclaim  the  oxen  and  recover  damages. (3) 


Section  IV. — effect  of  the  rescinding  of  a.  sale. 

1.  Goods  sold  can  be  taken  on  execution  by  a  creditor  of  the 
purchaser,  only  when  the  contract  between  vendor  and  vendee 
is  complete.  Even  a  suspension  of  the  contract  will  be  a  bar 
to  seizure  on  execution;  much  more  an  entire  rescinding  of 
it.  (4) 

2.  A  agreed  to  sell  B  certain  goods.     Before  any  bill  of  par- 

(1 )  Danforth  v.^Dewey,  3  N.  H.  79. 

(2)  Thornton  v.  Wynn,  12  Wheat.  183. 

(3)  Junkins  V.  Simpson,  2  Shepl.  364. 

(4)  Bartram  v.  Farebrother,  4  Bing.  582. 


280  RESCINDING    OF    SALES.  [Chap.    X. 

eels  made  out  or  payment  made,  B  removed  the  goods  to  the 
store  of  C,  a  commission  merchant  and  a  creditor  of  B.  i\fter- 
wards  the  contract  between  A  and  B  was  rescinided,  of  which 
C  had  notice,  but  sold  to  D,  taking  his  note  for  the  price. 
Held,  by  the  rescinding,  the  property  re-vested  in  A,  subject  to 
no  lien,  and  the  sale  to  D  was  void.  If  D  had  paid  his  note,  he 
might  recover  back  the  amount  of  it  from  C.(l) 

3.  After  sale  of  a  horse,  it  was  agreed  that  the  vendee  might 
in  reasonable  time  return  it  and  receive  back  the  price,  if  the 
horse  should  be  in  as  good  condition  as  when  delivered.  The 
vendee  accordingly  rescinded  the  bargain,  and  returned  the 
horse  to  the  vendor,  who  received  it  without  objection  and  re- 
stored the  price.  Held,  the  vendor  was  estopped  from  suing 
the  vendee  on  account  of  a  deterioration  of  the  horse  in  his 
hands,  arising  from  a  secret  injury.  The  sale  was  under  the 
circumstances  unconditionally  rescinded.  Otherwise,  the  ven- 
dee might  have  chosen  to  retain  the  horse. (2) 

4.  The  plaintiff  agreed  to  sell,  and  the  defendant  to  buy  of 
him,  a  certain  ship,  which  should  be  fitted  like  another  one, 
named.  Before  the  fittings  were  completed,  the  defendant 
repudiated  the  bargain,  and  refused  to  take  the  ship.  Previous 
to  such  refusal,  however,  the  plaintiflT  performed  certain  extra 
work  upon  the  vessel,  at  the  defendant's  request.  After  the  re- 
fusal, the  plaintiff  suspended  his  work,  sold  the  ship,  and 
brought  an  action  against  the  defendant  for  the  loss  upon  the 
sale.  The  declaration  alleged,  that  the  ship  was  fitted  accord- 
ing to  the  form  and  effect  of  the  agreement,  and  ready  for  de- 
livery at  the  proper  time.  There  was  also  a  count  for  work 
and  labor.  Held,  the  plaintiff  could  not  recover  on  the  former 
count,  because  performance  of  the  contract  was  a  condition 
precedent;  nor  on  the  latter,  for  the  extra  work,  because  he 
had  sold  the  ship. (3) 

5.  Where  the  vendor  of  a  horse  rescinds  the  sale,  he  is  liable 
to  the  vendee  for  the  expense  of  his  keeping,  from  the  day  of 
the  contract. (4) 

(1)  Spring  V.  Coffin,  10  Mass.  31. 

(2)  Lord  V.  Kenny,  13  John.  219. 

(3)  Parmeler  v.  Burrell,  3  C.  &  P.  144. 

(4)  King  V,  Price,  2  Chit.  416. 


CHAPTER  XI. 


WHAT  AVOIDS  A  SALE. 
Section  I. — fraud — between  the  parties. 

1,   General  principles. 

4.  Misrepresentation  by  a  vendee  as  to  his  circumstances,  pur- 

chase toithmit  an  intention  of  paying,  Sf^c. 

15.  Cheating,  what. 

16.  Miscellaneous  examples  of  fraud. 

Section  II. — fraud  against  creditors,  &lc, 

1.   General  principles — Statute  of  Elizabeth — Twyne's  case. 

5.  Secret  trust,  evidence  of  fraud.     Distinction  betioeen  trans- 

fers of  real  and  personal  estate,  absolute  and  conditional 
sales. 
iO.   Conveyance  to  a  creditor   of  property  exceeding  his  debt  ; 
distinction  between  actual  and  constrnct'ive  fraud,  ^c. 

1 1 .  Conveyance  after  suit  commenced. 

12.  Subsequent  ^-editors. 

13.  What  property  excepted Jrom  the  statute. 

14.  Decided  cases. 

23.  Sale  void  as  to  creditors,  6^0. ;  how  far  valid. 

26.  Evidence,  what  admissible. 

27.  Fraudulent  transfer  by  a  member  of  a  corporation. 

28.  Remedy,  what. 

29.  Conveyance  made  in  contemplation  of  bankruptcy. 

36 


382  WHAT  AVOIDS  A  SALE.  [Chap.  XL 

Section  III. — which  of  two  parties  shall  suff*er  bit  the 

FRAUD    of    a    third. 

Section  IV. — sales  void  for  illegality,  &c. 

1.    Wliether  the  imposing  of  a  penalty  render's  the  contract  void. 
4.  Decided  cases. 
16.  Sales,  immoral,  against  public  policy,  S^c. — miscellaneous 
examples. 


Section  I. — fraud,  between  the  parties. 

1.  Where  goods  are  sold  under  a  fraud,  no  action  lies  for 
the  price.(l) 

2.  Law  has  concurrent  jurisdiction  with  Equity  in  cases  of 
fraud,  and  it  is  a  rule  both  of  equity  and  of  law,  that  suppressio 
veri  is  equivalent  to  suggestiofalsi.{2)  On  a  question  of  fraud, 
the  remedy  at  law  is  complete. (3)  It  is  said,  the  distinction 
between  jurisdiction  of  fraud  at  law  and  in  equity,  is,  that  in 
the  former  court  it  must  be  proved,  and  cannot  be  presumed ; 
whereas  in  the  latter  it  may  be  presumed. (4)* 

(1)  Lewis  V.  Cosgrave,  2  Taun,  2. 

(2)  Fleming  v.  Slocum,  18  John.  404.  Rhoades  v.  Selin,  4  Wash.  Cir.  7)5. 
Brooks  V.  Carneal,  1  Lilt.  164. 

(3)  Russell  V.  Clark,  7  Cr.  69. 

(4)  Per  Woodworth,  J.,  Gallatin  v.  Cunningham,  8  Cow.  361. 

*  In  an  action  at  law  on  a  specialty,  fraud  in  relation  to  its  consideration  is  no  de- 
fence. Dule  V.  Roosevelt,  9  Cow.  307.  Jackson  v.  Hills,  8.  290.  But  relief  may  be 
had  in  Equity.     Per  Viele,  Senator,  ib. 

Equity  will  not  take  jurisdiction,  in  case  of  fraud  in  selling  diseased  slav-es,  for  the 
purpose  of  giving  compensation  in  damages — but  only  where  the  contract  ought  to  be 
rescinded.     Cocke  v.  Hardin,  Litt.  374. 

It  will  not  relieve,  where,  after  discovery  of  the  disease,  the  purchaser  did  not  offer 
to  return  the  slave  and  cancel  the  contract,  but  continued  to  employ  him  till  his 
death.     Ib. 

A  bill  in  Equity  to  vacate  a  contract  for  fraud  should  put  the  fraud  ia  issue.  Coff- 
man  V.  Allin,  Litt  201. 


Sect.    I.]  FRAUD,    BETWEEN    THE    PARTIES.  283 

3.  A  vendee  is  not  bound  to  inform  the  vendor  of  extrinsic 
Hicts  exclusively  within  his  knowledge  which  may  affect  the 
price  ;  but  neither  party  is  at  liberty  to  say  any  thing  which 
tends  to  impose  upon  the  other.(l)      (See  Warranty.) 

4.  In  case  of  a  fraudulent  purchase — as  where  the  vendee  is 
insolvent,  knows  himself  to  be  so,  and  has  no  reasonable  ex- 
pectation of  paying  for  the  goods;  or  where  he  fraudulently 
misrepresents  his  ability  to  pay  ;  he  gains  no  title  against  the 
vendor,  provided  the  latter  reclaims  the  property  immediately 
upon  discovery  of  the  fraud.  The  same  is  true  with  respect  to 
a  bona  fide  creditor  of  the  vendee,  whose  claim  accrued  before 
the  sale,  and  who  therefore  did  not  trust  upon  the  credit  of 
these  goods,  claiming  under  a  legal  process  against  the  vendee. 
The  vendor  may  maintain  replevin  against  the  officer  who  seizes 
the  property  under  such  process,  after  a  demand.  But  a  sale  of 
the  above  description  is  only  voidable,  not  void.  Hence,  one 
who  hona  fide  purchases  from  the  first  vendee,  before  the  vendor 
elects  to  avoid  the  sale,  (or,  it  seems,  an  attaching  creditor 
whose  claim  accrued  after  the  sale),  will  hold  against  the  ven- 
dor,* A  purchaser,  is  one  who  obtains  the  goods  from  the  ven- 
dee in  the  usual  corirse  of  trade,  without  notice  ;  in  other  words, 
one  who  gives  value  for  them,  by  making  advances,  or  incurring 
responsibilities,  or  taking  them  in  pledge  for  money  loaned  up- 
on their  security.  But  not  one,  who  receives  them  in  payment 
or  as  security  for  a  prior  debt. (2) 

5.  Where  goods  are  obtained  by  a  person  knowing  himself  to 
be  in  danger  of  insolvency,  by  means  of  bills  drawn    on   other 

(1)  Laidlavv  v.  Organ,  2  Whoat.  178. 

(2)  Root  V.  French,  13  WenJ.  570.  20  John.  651.  4  Bin.  368.  Buffingtoii  v. 
Gerrish,  15  Mass.  156.    Durell  v.  Haley,  1  Paige,  492. 

Equity  will  relieve,  on  a  wiiolesale  contract  for  merchandize,  the  seller  falsely  repre- 
senting that  it  was  bought  in  Philadelphia,  and  that  he  sold  it  at  12  1-2  per  cent  ad- 
vance on  the  Philadelphia  price.     Blacks  v.Catlett,  3  Litt.  139.  , 

On  a  bill  for  rescission  of  a  contract,  the  question  of  fraud  is  for  the  chancellor  to  de- 
cide, not  for  a  jury.    Goodloe  v.  M'Lanathan,  6  Mon.  310. 

"^  It  is  otherwise  in  the  case  of  goods  obtained  hy  felony.  A  felon  gains  no  right  of 
properly  or  possession,  and  can  convey  none.  In  the  former  case,  mentioned  in  the 
te.xt,  liic  vendee's  possession,  which  gave  an  appearame  of  ownership,  was  with  the 
vendor''s  consent      Uow1p\  v.  Bigelow,  12  Pick.  307,     (See  sis.  12,  13.) 


284  WHAT   AVOIDS    A    SALE.  [Chap.    XI. 

insolvent  persons  ;  the  sale  is  not  void,  unless  the  bills  were 
contrived  expressly  for  the  purpose  of  obtaining  the  goods. 
Thus,  where  one  went  to  Glasgow  from  London,  with  the  in- 
tention of  purchasing  goods  from  those  who  were  ignorant  of 
his  own  want  of  credit,  and  that  of  the  drawees  of  the  bill;  it 
was  held  that  the  sale  was  not  void,  unless  it  was  proved  bjr 
what  means  he  persuaded  the  vendor  to  sell.(l) 

6.  A  vendee  of  goods  gains  no  title,  and  cannot  retain  them, 
if  he  obtained  possession  by  gross  fraud,  under  color  of  a  pur- 
chase, whether  on  credit  or  otherwise.  So,  it  seems,  where  he 
purchased  with  the  previous  intention  of  not  paying;  of  which 
an  immediate  re-sale  at  reduced  prices  is  proper  evidence.  But 
the  mere  fact,  of  a  vendee's  knowing  his  own  inability  at  the 
time  to  pay  for  the  goods,  it  seemsj  does  not  avoid  the  sale. (2)* 

7.  The  defendant  purchased  goods  from  the  plaintiff,  to  the 
amount  of  about  $700,  and  gave  his  note  therefor,  payable  in 
six  manths.  He  also  represented  that  he  was  worth  about 
$2000  ;  but  in  one  month  became  insolvent,  and  then  stated  to 
his  creditors,  that  his  assets  were  a  little  more  than  $4000, 
and  his  liabilities  a  little  more  than  $11,000,  and  proposed  to 
pay  25  per  cent.     The  plaintiff  brings  trover  for  the  goods,  and 

(1)  Noble  V.  Adams,  2  Marsh.  336.     7  Taun.  59. 

(2)  Chit,  on  Contr.  321.  Earl,  &c.  v.  Wilsmore,  1  B.  &  C.  514.  (4  Bing.  476. 
9  B.  «&  C.  59.)     Irving  v.  Motiy,  7  Bing.  551. 

*  A  and  B  agreed  for  the  sale  of  a  chaise  by  the  former  to  the  latter.  B  to  give  his 
notes  for  the  price,  at  twelve  months,  to  keep  possession  of  the  property  and  use  it  at 
his  pleasure,  but  A  to  retain  [he  ownership  till  payment.  B  accordingly  gave  his  notes 
and  received  the  chaise,  used  it  as  bis  own,  and  within  the  year  sold  it  to  C,  who  had 
no  notice  ofA's  claiiii.  C  used  the  chaise  several  months,  with  the  knowledge  of  A 
»nd  after  the  expiration  of  the  year  sold  to  D.  At  the  time  of  the  contract  and  dur- 
ing the  year,  B  was  solvent,  but  afterwards  became  insolvent.  A  brings  trover  against 
C.  Hold,  the  action  would  lie.  There  was  no  fraudulent  delay  or  acquiescence  on 
the  part  of  A;  though,  if  B  had  been  insolvent  at  the  time,  with  the  knowledge  of  A, 
this  might  have  boen  evidence  of  fraud.     Sawyer  v.  Shaw,  9  Greenl.  47. 

A  mutual  mistake  of  tiie  parties  as  to  the  circumstances  of  the  vendee  is  no  around 
for  relief  in  Law  or  Equity.  Thus,  where  a  large  amount  of  goods  has  been  sold  to  a 
merchant  in  good  credit,  whoconsidcrod  himself  and  was  regarded  by  others  as  solvent, 
but  eleven  daysafter  the  sal.' proved  to  bo  bankrupt;  this  is  no  case  for  relief  in  a  Court 
of  Equity  on  the  ground  of  mistake.  If  it  were,  the  consequence  would  be  the  greatest 
confusion  in  the  meicantile  world.  Every  purchaser,  though  solvent,  would  be  liaWo 
to  have  his  circumstances  exposed  to  the  public  eye.     Lupin  v.  Marie,  6  Wend  .  77. 


Sect.    I.]  FUAUI),    BETWEEN    THE    VAKTIES.  285 

produces  the  note  at  the  trial,  but  without  having  offered  to  re- 
turn it  before  suit  brought.  The  defendant's  counsel  declines 
the  plaintiff's  offer  to  give  up  the  note,  and  it  is  thereupon  plac- 
ed upon  the  files  of  the  Court.  Held,  the  plaintiff  might  at  any 
time  rescind  the  sale  as  a  mere  nullity,  except  as  against  some 
bona  fide  purchaser  for  valuable  consideration  ;  that  a  conver- 
sion took  place  at  the  ti?ne  of  sale,  and  no  demand  was  necessa- 
ry to  maintain  the  action  ;  that  if  the  note  was  not  negotiable, 
it  need  not  be  returned,  because  the  rescinding  made  it  void  ; 
and  if  negotiable  and  not  actually  negotiated,  it  was  sufficient 
to  bring  it  into  Court  (1) 

8.  A  debtor  confessed  judgment,  and  fraudulently  purchased 
goods  and  obtained  a  delivery  of  them  without  payment,  for  the 
purpose  of  having  them  taken  on  execution.  Held,  he  had 
trained  no  title,  and  the  property  was  not  liable  to  be  taken  upon 
execution. (2) 

9.  The  plaintiff,  at  Birmingham,  forwarded  by  the  defendant, 
a  carrier,  a  box  directed  to  J.  West,  Great  Winchester  St.,  Lon- 
don ;  having  previously  sold  the  goods  to  a  person  falsely  as- 
suming that  name,  tendering  a  fictitious  bill  in  payment,  and  or* 
dering  them  to  be  thus  directed.  The  defendant,  finding  there 
was  no  such  person  at  the  place  named,  but  receiving  a  letter 
with  the  above  signature,  requesting  that  the  box  should  be  sent 
to  an  inn  at  St.  Alban's;  accordingly  delivered  it  there  to  a  per- 
son calling  himself  J.  West,  and  who  showed  that  he  was  ac- 
quainted with  the  contents.  This  person  absconded,  without 
payment.  In  an  action  of  trover  by  the  plaintiff  against  the  de- 
fendant, held  the  defendant  was  liable  for  the  value  of  the  goods. 
They  were  at  first  obtained  by  fraud,— sold  to  a  felon,*  who  did 
not  mean  to  purchase,  but  to  commit  a  felony.  In  determining 
whether  any  property  passed,  the  question  is,  not  what  the  sel- 
ler, but  what  the  buyer,  intended  to  do.  Originally,  the  con- 
tract was  between  the  defendant  and  the  supposed  purchaser. 
But  when  the  defendant  discovered  that  there  was  no  such  per- 
son at   the  appointed   place,  this  contract  came   to  an  end,  and 

(1)  Thurston  v.  Blanchard,  Sufloik,  Marcli  1839.     Law  Reporter,  July  —39,  p.  80. 
22  Pick.  18. 

(2)  Van  Cleef  V.  Fleet,  15  John.  147.     Darell  r.  Haley,  I  Paige,  492. 

♦  Park,  J,  said  -'I  will  i-.ot  call  him  swindler.' 


;iy(j  WHAT    AVOIDS    A    SALE.  [Chap.    XI. 

the  defendant  began  to  hold  the  property,  by  an  implied  contract, 
for  the  plaintiff.(l) 

10.  A  went  to  the  shop  of  B  and  proposed  to  purchase  goods. 
B  agreed  to  sell,  and  deliver  them  at  Lad  lane  the  same  evening. 
On  arriving  there,  A  said  he  expected  a  friend  with  the  money, 
who  would  give  it  to  him  (A)  at  Tom's  coffee-house,  and  ap- 
pointed to  meet  B  there  in  an  hour.  B  accordingly  left  the 
goods,  and  A  absconded  with  them.  In  determining  whether 
the  property  passed  from  B,  the  question  was  left  to  the  jury 
whether  A  intended  to  buy  or  steal  ;  and,  upon  their  finding  the 
latter,  it  was  decided  that  the  property  did  not  pass. (2)  (See  s. 
4,  note.) 

11.  To  prove  fraud  in  a  sale  on  the  ground  that  the  vendee 
did  not  intend  to  pay  for  the  property,  it  is  not  absolutely  ne- 
cessary to  show  a  false  pretence  or  other  direct  artifice  in  regard 
to  the  individual  purchase.  It  is  sufficient,  if  such  purchase  is 
one  of  a  series  of  acts,  which,  all  together,  indicate  a  design  to 
obtain  the  goods  without  payment,  of  which  these  are  a  part. 
As  where  an  inordinately  large  quantity  is  purchased  from  many 
persons,  in  proportion  to  the  regular  purposes  of  the  party's  ap- 
parent business  ,\  where  the  goods  are  not  kept  or  dealt  with  in 
such  place  or  manner,  as  to  show  a  fair  acquisition  for  the  pur- 
poses of  regular  business;  where  there  have  been  forced  sales, 
at  a  sacrifice,  of  goods  purchased  shortly  before  on  credit,  or 
subsequent  conversations  and  conduct,  showing  a  design  to 
evade  payment  and  unjustly  appropriate  the  property.  It  seems, 
the  goods  cannot  be  followed  into  the  hands  of  a  bona  fide,  pur- 
chaser from  the  original  vendee. (3) 

12.  The  same  kind  of  deceit  or  misrepresentation,  which  ren- 
ders a  sale  void,  furnishes  a  good  ground  of  action  by  the  ven- 
dee against  the  vendor  or  a  third  person. 

13.  Where  A  induces  B  to  sell  goods  on  credit  to  C,  whom 
he  would  not  otherwise  have  trusted,  by  asserting  what  he  knows 
to  be  false  ;  the  assertion  alone  is  no  sufficient  ground  of  action, 
but  it  must  be  proved  to  be  false,  and  that  the  defendant  knew 

(1)  Stephenson  v.  Hurt,  4  Hing.  476.     (See  AicKles's  case,  1  Leach,  294.) 

(2)  Cami.bell'.s  ca^e,  cited  4  Bing.  483. 

(3)  Mackinley  V.  M'Gregor,  3  VVhart.  369. 


Sect.    I.]  FRAUD,    BETWEEN    THE    PARTIES.  287 

it  to  be  so.  The  principle  is,  that  if  one  wickedly  assert  what 
he  knows  to  be  false,  and  draws  another  into  loss,  he  is  liable 
to  an  action  for  damages.  In  such  action  it  must  be  alleged, 
that  the  defendant,  intending  to  deceive  and  defraud,  did  deceit- 
fully encourage  and  persuade  the  plaintiff,  and  for  that  purpose 
made  a  false  affirmation,  whereby  the  plaintiff  acted. (1) 

14.  Where  one  sends  his  servant  to  buy  a  horse,  who  buys 
and  pays  for  it,  and  the  vendor  represents  to  the  master  that  he 
has  not  been  paid,  whereby  the  latter  is  induced  to  pay  a  second 
time ;   an  action  lies  against  the  vendor. (2) 

15.  Cheating,  at  common  law,  was  an  indictable  offence  ;  but 
it  must  consist  in  some  act  of  a  nature  to  affect  the  public,  and 
such  as  common  prudence  could  not  guard  against.  St.  33 
Hen.  8.  ch.  I.  made  provision  against  the  act  of  obtaining  mo- 
ney, goods,  itc.  by  rt  false  toTcen.  But  the  act  does  not  apply, 
where  there  has  been  a  want  of  common  prudence.  St.  30  Geo. 
2,  ch.  1,  makes  it  an  indictable  offence  to  obtain  money,  goods,, 
&c.  u^on  false  pretences ;  which  before  this  act  would  not  be 
sufficient,  without  a  false  token.  This  last  act  was  never  in 
force  in  Massachusetts,  but,  a  similar  act  having  been  passed, 
the  English  decisions  are  applicable.  To  bring  a  case  within  this 
statute,  there  must  be  false  pretences,  or  stories  and  misrepre- 
sentations deceiving  and  intended  to  deceive  the  vendor,  and 
fraudulently  contrived  for  that  purpose.  Barely  asking  one  for 
money  is  not  sufficient.  So  where  one  pretended  that  he  wish- 
ed to  purchase  lottery  tickets  to  a  large  amount,  and  bought  a 
quantity  of  tickets,  paying  for  them  by  a  draft  upon  a  banker 
in  whose  hands  he  represented  himself  to  have  funds,  but  knew 
that  he  had  not,  held,  an  indictment  could  not  be  sustained  upon 
these  facts.  There  was  nothing  in  the  case  but  the  party's  own 
assertion.  The  check  could  not  be  considered  as  a  false  token. 
It  left  his  credit  precisely  where  it  was  before.(3)  So,  where 
one  receives  money  upon  the  false  pretence  of  having  a  message- 


(1)  Pasley  v.  Freeman,  3  T.  R.  51. 

(2)  Com.  Dig.  Action  on  the  Case,  &c.  A  10. 

(3)  1  Hawk.  ch.  71.  2  Burr.  1125.  1  Greenl.  387.  6  Mod.  105.  301.  42.  61.  5 
Mod.  11.  11  Mod.  222.  Ld.  Ray.  1013.  Com.  v.  Warren,  6  Mass.  72.  Young  v. 
Rex,  3T.  R.  98.     See  State  v.  Wilson,  2  Con.  S.  C.  135.    Rex  v.  Lara,  6  T.  R.  565. 


288  WHAT  AVOIDS  A  SALE.  [Chap.  XI. 

or  order  for  it,  this  is  not   indictable,  there  being  no  artful  con- 
trivance, but  a  bare,  naked  lie. (I)* 

16.  It  is  not  a  fraudulent  act,  for  a  vendor  to  re-purchase  from 
his  vendee  through  a  third  person,  who  does  not  disclose  that 
he  acts  for  the  vendor. 

17.  A  sold  goods  to  B,  to  be  paid  for  by  a  bill  at  two  months. 
B  declining  to  give  the  bill,  and  being  in  danger  of  insolvency, 
A  procured  a  broker  to  re-purchase  the  property  in  his  own 
name,  at  a  price  much  lower  than  the  former  one.  B  became 
bankrupt,  not  knowing  that  the  re-purchase  was  made  on  A's 
account;  and  his  assignees  bring  trover  for  the  goods  against 
A.  Held,  there  was  no  fraud  on  the  part  of  A,  and  the  action 
could  not  be  sustained. (2j 

18.  But  where  one  person  purchases  goods  professedly  for 
another  at  a  certain  price,  and  the  vendor  privately  agrees  with 
the  real  purchaser  to  pay  him  a  further  sum,  this  is  a  fraud  up- 
on the  nominal  vendee,  and  the  vendor  cannot  recover  such  ad- 
ditional price. 

19.  Thus,  A,  taking  a  house  which  had  been  tenanted  by  B, 
was  to  take  the  goods  therein  at  an  appraisal.  Not  having  the 
necessary  funds,  A  applied  to  C,  who  thereupon  purchased  the 
goods  for  A,  taking  a  bill  of  sale  to  himself,  in  which  the  con- 
sideration was  expressed  ;  but  B  made  a  private  agreement  with 
A  to  pay  him  (B)  an  additional  sum.  Held,  this  agreement  was 
a  fraud  upon  C,  and  could  not  be  enforced  against  A. (3) 

20.  Where  one  obtains  property  by  fraud,  and  therefore  by  a 
void  title,  and  then  disposes  of  it  to  another,  the  latter  may  set  up 
the  original  fraud  in  defence  to  a  claim  for  the  price.  Thus  a 
note,  given  in  consideration  of  a  patent,  which  was  obtained  by 
fraud,  void,  though  the  conveyance  were  by  deed,  with  covenants 

(1)  Hawk,  b.l.ch.  71,8.  2 

(2)  Harris  v.  Lunell,  4  Moore,  10. 
<S)  Jackson  v.  Duchaire,  3  T.  R.  551. 


♦  Obtaining  horses  from  an  ignorant  person  by  threats  of  a  criminal  prosecution  for 
horse-stealing,  and  by  threats  of  his  life,  is  swindling  under  the  act  (of  S.  C.)  of  1791. 
State  V.  Vaughan,  1  Bay.  282.  In  the  same  state,  selling  a  blind  horse  as  sound  is 
not  indictable — though  ground  for  an  action  of  deceit.     State  v.  Delyon,  1  Bay.  353. 


Sect.     II.]  FRAUD    AC-AIXST    CRF.DITORS,    (Si-G.  289 

of  warranty,  and  though  the  vendor  has  furnished  the  vendee  in- 
struction, materials  and  labor  in  relation  to  the  art  which  is  pa- 
tented ;  because  these  are  useful  only  as  connected  with  the  art 
itself  (I) 


Section  II.— fraud  against  creditors,  &,g. 

1.  In  addition  to  the  fraud  which  avoids  a  sale  as  between  the 
parties,  there  is  a  species  of  fraud  having  reference  only  to  cre- 
ditors of,  or  subsequent  purchasers  from,  the  vendor,  and  by  rea- 
son of  which  such  creditors  or  purchasers  may  claim  the  proper- 
ty out  of  the  vendee's  hands.  One  of  the  principal  evidences 
of  this  kind  of  fraud  has  been  already  considered  at  length  ;  viz. 
the  retaining  of  possession  by  the  vendor  after  a  sale.  (Seech, 
2.)  In  some  other  important  points  of  view,  the  subject  now 
remains  to  be  considered. 

2.  It  is  said,  that  every  man  may  dispose  of  his  own  property 
as  he  pleases  ;  but  always  subject  to  the  equitable  principle,  that 
he  is  not  to  injure  another  by  his  gift. (2) 

3.  It  is  a  maxim  of  the  common  law,  that  "  fraud  vitiates  every 
thing."  But  the  doctrine  of  fraudulent  conveyances,  so  called, 
rests  chiefly  upon  an  ancient  English  statute,  13  Eliz.  ch.  5, 
which  was  passed  to  do  away  all  doubts  upon  the  subject,  and 
to  affirm  expressly  the  implied  principles  of  the  common  law.(3)* 

4.  One  of  the  earliest,  and  the  most  important  of  the  exposi- 
tions of  the  Statute,  above  referred  to,  is  Twyne's  case,  decided  in 
the  Star  Chamber  in  the  44th  year  of  Elizabeth.  The  principles 
therein  settled  have  been  recognized  as  law  in  most  of  the  sub- 

(1)  Sliss  V.  Negij?,  S  Mass.  46. 

(2)  Marcy  v.  Clark,  17  Mass.  334. 

(3)  See  Cowp.  434. 


•  It  is  remarked  by  a  high  Amsriian  authority,  that  the  doctrine  of  fraudulent  sales 
of  goods  rests  ui>on  the  more  ancient  statutes,  50  Edw.  3,  ch.  6,  3  Hen.  7,  ch.  4, 
and  that  the  statutes,  13  Eliz.  ch.  5.,  27  El.?,  ch.  4,  apply  to  lands  only.  1  Story  Eq. 
S43.      ICranch,  309. 

37 


290  WHAT  AVOIDS  A  SALE.  [Chap.  XI. 

sequent  cases.  The  facts  were  as  follows.  A,  being  indebted 
to  B  in  the  sum  of  .£400,  and  to  C  in  the  sum  of  =£200,  and 
being  possessed  of  personal  property  worth  £300  ;  pending  an 
action  against  him  by  C,  secretly  conveyed  by  deed  all  his  goods 
and  chattels,  real  and  personal,  whatsoever,  to  B,  in  satisfaction 
of  his  debt,  expressly  stating  that  it  was  done  honestly,  truly  and 
bo?ia  jfide.  A,  however,  still  retained  possession,  sold  some  of 
the  property,  sheared  the  sheep  and  marked  them  with  his  own 
mark.  C,  having  recovered  judgment,  put  his  execution  into 
the  sheriff's  hands,  who  undertook  to  levy  it  upon  the  property 
conveyed  to  B,  but  certain  persons  under  B's  direction  made 
forcible  resistance,  claiming  the  goods  as  B's,  under  a  transfer 
made  for  good  and  lawful  consideration.  Upon  the  question 
whether  this  was  a  fraudulent  conveyance,  held,  it  was  ;  because, 
1.  it  was  general,  not  excepting  even  apparel  or  other  necessa- 
ries, and  "  dolus  versatur  in  generalibus"  ;  2  A  remained  in 
possession,  (see  Delivery.)  3.  the  gift  was  secret,  and  "  dona 
clandestina  sunt  semper  suspiciosa"  ;  4.  it  was  made  pending 
the  writ ;  5.  there  was  a  trust,  proved  by  A's  continued  pos- 
session;  6.  the  statement  that  the  transfer  was  an  honest  one 
was  an  unusual  clause,  and  "  clausulae  inconsuetse  semper  induc- 
unt  suspicionem."  The  exception  in  the  Statute  of  Elizabeth, 
being  of  any  transfer  made  "  on  good  consideration  and  bona 
fide"  did  not  apply  to  this  case ;  because,  although  B's  debt 
was  consideration  enough,  the  transfer  was  not  made  in  good 
faith,  on  account  of  the  secret  trust.  Thus  if  one  owe  several 
persons  £20  each,  and,  having  goods  worth  £20,  convey  them 
to  one  of  his  creditors  in  satisfaction  of  his  debt,  but  subject  to 
a  trust,  that  the  donee  shall  deal  favorably  with  him  in  regard 
ef  his  poor  estate,  either  to  permit  the  donor  or  some  other  for 
him  ©r  for  his  benefit  to  use  or  have  possession  of  them,  and  is 
contented  that  he  shall  pay  him  his  debt  when  he  is  able  ;  this 
is  void,  because  not  bona  fide.  Ld.  Coke,  the  reporter,  goes  on 
to  advise,  that  when  any  gift  shall  be  to  you  in  satisfaction  of  a 
debt,  by  one  who  is  indebted  to  others  also  ;  1.  let  it  be  in  a 
public  manner  and  before  the  neighbors ;  2.  let  the  goods  and 
chattels  be  appraised  by  good  people  to  the  very  value,  and  take 
a  gift  in  particular  in  satisfaction  of  your  debt;  3.  immediately 


Sect.  II.]       FRAUD  AGAINST  CREDITORS,  &C.  291 

after  the  gift  take  the  possession  of  them.  He  further  remarks, 
that  every  gift,  though  bona  fide,  is  not  made  for  good  consid- 
eration. Thus  if  one,  being  indebted,  conveys  all  his  goods  to 
his  son  or  cousin  in  consideration  of  natural  affection,  this  is 
void  against  creditors,  because  the  consideration  is  not  avalua- 
ble  one;  and,  as  the  claims  hereby  defeated  are  valuable,  equity 
requires  that  the  conveyance  which  defeats  them  should  be  on 
equally  high  and  good  consideration  ;  and  it  is  to  be  presumed 
that  the  father,  if  not  in  debt,  would  not  have  dispossessed  him- 
self of  all  his  goods,  and  subjected  himself  to  his  cradle;  and 
therefore  it  shall  be  intended,  that  it  was  made  to  defeat  hiscre- 
ditors.(l) 

5.  As  appears  from  the  above  case,  where  the  terms  of  a  sale 
provide  a  trust  for  the  vendor,  the  sale  is  fraudulent.  And  pos- 
session by  him  is  prima  facie  evidence  of  such  trust.  The 
same  rule  applies,  though  he  be  not  in  possession  at  first,  but 
the  property  is  left  with  him  under  a  subsequent  contract  to  take 
it  and  pay  rent.  The  question  whether  a  trust  existed,  is  for 
the  jury  ;  but,  when  admitted  or  proved,  the  inference  from  it 
is  an  inference  of  law,  which  the  Court  is  bound  to  make.  The 
nature  of  the  trust  reserved  is  immaterial.  It  may  be  the  use 
of  the  goods,  or  some  other  favor.  Ld.  Coke  says,  "  what  is  a 
trust,  per  nomen  speciosum,  between  donor  and  donee,  is,  as  to 
creditors,  fraud.'^  An  express  trust,  is  where  the  terms  of  it 
are  specified.  An  implied  trust,  is  where  the  sale  is  for  no  con- 
sideration, or  a  good  one  only.  In  the  latter  case,  the  law  pre- 
sumes, that  a  benefited  relation  will  relieve  a  donor  who  is  in 
debt.  And  an  express  trust  may  consist  in  some  secret  under- 
standing. But  a  trust  does  not  avoid  the  sale  as  against  a  cre- 
ditor having  notice  of  the  sale.  He  is  a  quasi  party.  So,  mar- 
riage settlements  are  exceptions  to  the  general  rule.  In  these, 
possession  is  consistent  with  bona  fides.  On  this  subject,  Rich- 
ardson, Ch.  J.  remarks,  that  there  is  no  contradiction  in  the  deci- 
sions, though  there  are  some  contradictory  dicta.{^) 

(1)  Twyne's  case,  3  Co.  80. 

(2)  Coburn  v.  Pickering,  3  N.  H.  415.  Edwards  v.  Harbeii,  2  T.  R.  587.  TNTyne's 
case,  3  Co.  80.  Hamilton  v.  Russed,  1  Craiich,  309.  Dawes  v.  Cope,  4  Bin.  258. 
U.  S.  V.  Hooe,  3  Cranch,  73.  1  Pick.  295.  1  Esp.  205.  1  Camp.  332.  Steel  v. 
Brown,  1  Tauii.  381.  Cadogan  v.  Kenneli,  Cowp  432.  Haselinton  v.  Gill,  3  T,  R. 
dfOn. 


292  WHAT  AVOIDS  A  SALE.  [Chap.   XL 

6.  In  case  of  a  bill  of  sale  or  other  transfer  apparently  abso- 
lute, any  secret  trust  or  agreement,  inconsistent  with  the  tenor 
of  such  instrument,  is  evidence  of  fraud  as  against  creditors.  But 
it  is  not  actual  fraud  or  conclusive  evidence  of  it,  except  in  the 
case  of  real  estate,  where  the  whole  agreement  ought  to  appear 
in  the  deed  or  some  other  writing  of  as  high  a  nature.  So,  in- 
adequacy of  indebtedness  on  the  part  of  a  vendor  is  not  jier  se 
fraudulent.  (1) 

7.  Liability  to  future  damage  as  a  surety,  fs  no  sufficient  con- 
sideration for  an  absolute  bill  of  sale,  as  against  creditors.  (2) 

8.  But  where  a  bill  of  sale,  in  terms  absolute,  is  in  fact  made 
for  security,  this  fact  is  not  per  sc  conclusive  of  fraud,  but  merely 
evidence  for  the  jury.  If  both  parties  prove  that  the  instrument, 
though  absolute  in  form,  is  designed  for  security,  and  made  6o- 
na  Jide ;  it  is  valid  as  a  mortgage.  Whether  an  attaching  cre- 
ditor of  the  vendor  can  be  admitted  to  show  this  fact,  qu.(3) 

9.  Where  a  vendee  gives  a  bond  of  defeasance  to  the  vendor, 
and  the  property  is  afterwards  attached  by  creditors  of  the  lat- 
ter, in  a  suit  against  the  attaching  officer,  the  vendee  must  pro- 
duce the  bond,  or  account  for  its  non-production,  by  showing 
due  diligence  to  procure  it.  Parol  evidence  of  such  bond  is 
inadmissible.  The  vendor  might  be  summoned  as  a  witness, 
and  the  bond,  being  in  his  hands,  would  then  be  forth  com- 
ing.(4) 

10.  It  may  be  inferred  from  Twyne's  case,  and  seems  to  be 
well  settled,  that  the  question,  whether  an  assignment  to  a 
creditor,  of  an  amount  of  property  much  exceeding  his  debt, 
shall  be  held  wholly  fraudulent  and  void  against  other  creditors; 
depends  upon  the  consideration,  whether  the  assignee  knew  the 
existence  of  other  debts,  and  the  debtor's  fraudulent  intention, 
or  honestly  designett  to  hold  the  surplus  as  trustee  for  the  debt* 
or  ;  or,  in  other  words,  whether  there  was  actual  or  merely  con-^ 
structivc  fraud.  Actual  fraud  avoids  the  conveyance  in  ioto, 
so  that  it  cannot  stand  as  security  for  reimbursement  or  indem-* 

(1)  New  England,  &c.  v.  Chandler,  16  Mass.  275.     Adams  v.  Wheeler,  10  Pick. 
199. 

(2)  Gorham  v.  Hcrrick,  2  Grecnl.  87. 

(3)  Reed  V.  Jewett,  5  Greenl.  96. 

(4)  Gorham  r.  Herrick.  2  Greenl.  57. 


Sect.  II.]      FRAUD  AGAINST  CREDITORS,  &,C.  293 

nity  of  advances  really  made.  But  constructive  fraud  avoids  it 
only  for  the  excess  of  the  value  of  the  property  over  and  above 
the  claim  to  be  secured.*  An  assignment,  made  partly  to  se- 
cure a  just  debt  and  partly  to  defeat  creditors,  is  wholly  void.(l) 

11.  Where  A,  being  indebted  to  B  and  C,  is  sued  by  B,  he 
may  still  make  a  valid  conveyance  to  C.  Thus,  if  B  have  taken 
out  execution,  A  may  voluntarily  give  C  a  warrant  of  attorney 
to  confess  judgment,  which  may  be  immediately  entered,  and  ex- 
ecution be  thereupon  levied  on  the  same  day  when  B  might  and 
had  threatened  to  sue  out  execution ;  and  C's  title  shall  prevail 
over  B's.  So  a  debtor,  pending  a  suit  against  him  by  one  of 
his  creditors,  may  assign  all  his  property  in  trust  for  all  of 
them  ;  the  object  of  such  conveyance  being  highly  equitable 
and  honest,  though  made  with  intent  to  delay  the  suing  creditor 
of  his  execution. (2) 

12.  A  conveyance  is  not  void  as  against  subsequent  creditors, 
unless  it  be  not  only  voluntary ,  but  collusive  and  fraudulent, 
and  made  with  a  view  to  future  debts.(3) 

13.  It  seems,  the  Statute  of  Elizabeth  does  not  apply  to  pro- 
perty of  such  a  nature  as  could  not  be  reached  by  legal  pro- 
cess.(4) 

14.  The  following  cases  may  be  cited,  as  illustrating  the  gen- 

(1)  Wilson  v.Wormal.Godb.  161.  4  Rand.  282.  4  John.  599.  Long,  122,  3.  4 
John.  598,9.  2  Ves.  517.  2  Sch.  &  Lef.  492.  Magniac  v.  Thompson,  1  Bald.  344. 
Tucker  v.  Welsh,  17  Mass.  164. 

(2)  Holbird  v.  Anderson,  5  T.  R.  235.  Pickstock  v.  Lyster,  3  M.  &  S.  371.  S 
Price,  6.     4  E.  1.     6  C.  &  P.  142. 

(3)  8  Wheat.  223.     4  Wend.  300.     6  Paige,  526. 

(4)  1  Story's  Eq.  361. 


*  In  the  late  American  edition  of  Long  on  Sales,  the  Editor  remarks,  (p.  123) 
that  "  in  a  court  proceeding  according  to  the  course  of  the  common  law,  where  aC' 
tual  fraud  alone  is  regarded,  if  a  conveyance  is  found  to  be  fraudulent  against  a 
creditor,  he  can  avoid  it  unconditionally,  &c.  It  is  otherwise,  however,  in  cases  where 
,no  actual  t'i-aud  was  in  contemplation,  but  where  the  conveyance  was  made  or  obtain- 
ed under  such  suspicious  or  inequitable  circumstances,  that  a  Court  of  Equity 
may  set  it  aside,  as  being  constructively  fraudulent.'  It  would  seem,  that  a  distinc- 
tion between  actual  and  constructive  fraud,  depending  upon  the  tribunal  resorted  to 
for  relief,  is  not  strictly  accurate.  A  Court  of  Law,  no  less  than  a  Court  of  Equity, 
has  power  to  avoid  a  sale  for  constructive  fraud  ;  as,  for  instance,  where  the  vendor 
remains  in  possession,  although  no  fraudulent  intention  be  proved. 


294  WHAT  AVOIDS  a   sale.  [Chap.  XI. 

eral   points  on   the  subject   of   fraudulent  conveyances,   above 
stated. 

15.  Assignment  in  trust,  of  a  part  of  the  debtor's  property, 
from  the  rents  and  profits  to  pay  one  half  for  his  use,  and  the 
other  to  particular  creditors.  If  there  is  no  intention  of  fraud- 
ulently delaying  other  creditors,  such  assignment  is  valid. (1) 

16.  A,  being  in  debt,  delivered  certain  goods  to  B,  a  creditor, 
for  more  than  their  value,  with  a  bill  of  parcels  describing  the 
articles  and  their  prices,  and  stating  that  they  were  bought  and 
paid  for.  It  was  agreed  between  the  parties,  that  B  should  sell 
the  goods,  apply  the  proceeds  to  pay  his  debt,  and  account  to 
A  for  the  surplus.     Held,  a  void  sale.  (2) 

17.  A  bona  fide  creditor  said  to  his  debtor,  that  he  wished  to 
have  a  conveyance  of  his  property,  rather  to  prevent  attach- 
ment by  other  creditors  than  for  his  own  security.  A  transfer 
being  accordingly  made,  held,  the  above  declaration  merely 
raised  a.  presumption  of  fraud. (3) 

18.  A,  "  in  consideration  of  indebtedness,"  conveyed  to  the 
plaintiff  certain  property  by  a  written  instrument  containing  this 
clause  ;  "  and  it  is  agreed  that  the  debtor  shall  remain  in  pos- 
session, till  default  of  payment  of  what  may  be  due  to  the  plain- 
tiff, at  such  time  as  he  shall  demand  payment."  The  property 
was  subsequently  delivered.  The  sale  was  proved  to  be  bona 
fide.  Held,  the  property  passed  as  against  creditors  of  the  ven- 
dor, and  might  be  held  as  security  for  subsequent  liabilities  on 
his  account.  The  vendee  was  subject  to  be  summoned  as  trus- 
tee of  the  vendor,  which  would  prevent  any  claim  for  advances, 
made  after  service  of  the  writ  upon  him. (4) 

19.  A,  being  indebted  to  a  bank,  besides  a  cash  deposit, 
transferred  to  B,  the  cashier,  shares  in  the  bank  and  in  an  in- 
surance company.  The  transfer  was  in  form  unconditional,  but 
there  was  an  understanding  between  the  parties,  that  it  was  to 
be  for  collateral  security  only,  and  that  any  surplus  remaining 
after  payment  of  the  debt  was  to  be  paid  to  A.     There  was  ev- 


(1)  Estwick  V.  Caillaud,  5  T.  R.  420. 

(2)  Parliei-  v    Pallee,  4  N.  II.  176. 

(3)  Reynolds  v.  Wilkins,  2  Shepl.  104. 

(4)  Adams  v.  Wheeler,  10  Picls.  199. 


Sect.    II.]  FR.\UD    AGAINST    CREDITORS,    &C.  295 

idence  that  the  bank  consented  to  the  arrangement.  Held,  the 
transfer  was  valid,  and  the  cashier  was  a  trustee  of  A  as  to  the 
surplus  proceeds.  The  conveyance  was  not  in  law  made  to  the 
hank,  though  B  was  mentioned  as  cashier,  and  took  in  that  ca- 
pacity. B  was  a  depositary  for  the  benefit  of  the  bank  and  of 
A,  and  the  word  cashier  was  a  mere  term  of  designation.  B 
only  had  control  of  the  property  and  could  assign  it,  and  though 
a  sale  by  him  without  authority  would  be  a  violation  of  his  duty 
to  the  bank,  yet  a  purchaser  ignorant  of  the  facts  would  take  a 
title.  The  transaction  was  not  a  fraudulent  one.  The  object 
was  a  fair  one,  viz.  payment  of  an  honest  debt.  Though  an  in- 
discreet arrangement,  there  was  no  attempt  to  secrete  the  pro- 
perty from  creditors.  It  is  a  common  usage  for  banks  to  take 
security,  without  any  formal  stipulations  as  to  disposing  of  the 
property.(l) 

20.  A,  being  in  embarrassed  circumstances,  gave  a  bill  of 
sale  of  a  ship  to  B,  without  consideration,  and  for  the  purpose 
of  preventing  an  attachment  by  his  creditors.  B,  with  the  con- 
sent of  A,  reconveyed  the  vessel  to  C,  one  of  A's  creditors. 
Held,  C  should  hold  against  other  creditors  of  A. (2)* 

21.  A  bill  of  sale  or  assignment  of  goods  set  forth  as  the  ob- 
ject of  the  instrument,  to  secure  the  party  taking  it  against 
his  liabilities  as  surety  for  the  other,  and  provided  that  if  the 
former  should  become  answerable  thereupon  he  might  turn  out 
the  goods  upon  execution  or  dispose  of  them  at  private  sale, 
accounting  for  the  proceeds.  Held,  the  transaction  was  in  na- 
ture of  a  mortgage,  and,  as  the  possession  of  the  mortgagor  was 
conformable  to  the  terms  of  the  instrument,  there  was  no  proof 
of  fraud  against  creditors,  and  he  retained  no  interest  liable  to 
be  taken  by  them. (3) 

22.  Bona  fide  conveyance  by  a  debtor   of  all   his   property, 

(1)  New  Elnglandfdcc.  v.  Chandler,  16  Mass.  275- 

(2)  Boyd  V.  Brown,  17  Pick.  453. 

(3i)  Marsh  y.  Lawrence,  4  Cow.  461.  ' 

*  C,  in  consideration  of  the  transfer  to  him,  agreed  to  indorse  a  certain  sum  upon  a 
note  which  he  held  against  A.  The  vessel  being  afterwards  attached  by  A's  creditors, 
held,  if  the  attachment  was  prior  to  the  indorsement,  and  the  latter  ante-dated,  this 
was  not  conclusive  of  fraud,  but  only  circumslantial  evidence  for  thejiirv.     Ih. 


296  WHAT  AVOIDS  A  3Ai,E.  [Chap.  XI. 

(consisting  mostly  of  his  wife's  former  estate,)  to  trustees,  in 
consideration  of  a  certain  sum  to  be  paid  by  one  of  thern,  in 
trust  to  sell,  and  from  the  proceeds  to  pay  such  trustee's  own 
claims,  and  then  all  such  debts  as  the  trustees  should  think  pro- 
per, and  to  hold  the  surplus  for  the  wife  as  a  separate  mainte- 
nance. Held,  the  assignment  was  valid,  all  the  creditors  known 
at  the  time  having  received  payment  of  their  debts. (1) 

23.  A  sale  void  against  creditors  is  valid  not  only  between 
the  parties,  but  also  between  the  grantee  and  a  third  person  for 
whose  benefit  it  is  made. 

24.  Thus,  where  one  conveys  to  his  children  in  fraud  of 
creditors,  the  fraud  is  no  defence  to  an  action,  brought  by  the 
children  against  the  party  who  receives,  and  agrees  to  account 
to  them  for  the  property.  The  transaction  is  not  illegal,  and, 
though  liable  to  be  avoided  by  creditors,  is  valid  against  all 
others. (2) 

25.  Though  a  sale  be  void  against  creditors,  a  subsequent 
vendee,  for  valuable  consideration  and  without  notice,  acquires 
a  good  title. (3) 

26.  A  sale  made  by  one  person  cannot  be  proved  fraudulent 
by  evidence  relating  to  a  sale  by  another,  although  the  vendors 
are  owners  in  common  of  the  same  property.  Thus,  where  one 
sells  an  undivided  part  of  a  vessel  to  A,  and  the  rest  to  B,  and 
the  ship  is  afterwards  re-conveyed  to  the  vendor;  in  a  suit  by 
the  vendor  against  an  officer  who  attaches  her  on  behalf  of  A's 
creditors,  the  defendant  cannot  show  fraud  in  the  re-conveyance 
by  B,  as  proof  of  fraud  in  the  re-conveyance  by  A. (4) 

27.  It  has  been  held  in  Massachusetts,  that  where  the  member 
of  a  manufacturing  corporation  transferred  his  shares  to  an  in- 
solvent person,  in  order  to  avoid  payment  of  an  execution 
against  the  company  ;  the  transfer  was  fraudulent  and  void,  un- 
der St.  1817  ch.  183,  which  rendered  the  body  or  estate  of  an 
individual  corporator  liable  for  such  execution.  So  a  sale  of 
goods  with  this  object  is  void.  The  above  Statute  provided, 
that  such  persons  as  were  members  when  the  debt  was  incurred 

(1)  Nunn  V.  Wilsmore,  8  T.  R.  521. 

(2)  Fairbanks  v.  Blackington,  9  Pick.  93. 

(3)  Trott  V.  Warren,  2  Fairf.  227. 

(4)  Boyd  V.  Brown,  17  Pick.  453. 


Sect.    II.]  FR\UD    AGAINST    CUr.niTORS,    &c.  297 

should  be  liable.  Hence,  this  liability  would  continue,  not- 
withstanding even  a  bona  fide  transfer;  and  it  would  be  no  valid 
objection  to  such  liability,  that  a  former  corporator  is  no  party 
to  the  suit  on  the  judgment.  And  therefore  that  to  charge  him 
would  be  a  violation  of  the  constitution  and  bill  of  rights.  Un* 
der  St.  180S,  ch.  Co,  an  execution  could  bind  only  those  who 
were  members  at  the  time  of  the  lcvy.(l) 

28.  In  case  of  a  fraudulent  conveyance,  a  creditor  may  avail 
himself  of  the  property  transferred,  either  I  y  a  direct  attach- 
ment or  a  trustee  process. (2) 

29.  A  peculiar  instance  of  fraud  in  relation  to  creditors,  is 
where  a  person  conveys  his  property  to  one  or  more  creditors, 
in  expectation  or  contemplation  of  bankruptcy .  Under  the  Eng- 
lish bankrupt  law  every  such  conveyance  is  void ;  and  the  in- 
solvent laws  of  Massachusetts,  and  probably  of  all  the  other 
states  where  such  a  law  exists,  contain  a  similar  express  pro- 
vision. 

30.  Such  conveyance  is  held  void,  though  the  debtor  were  in 
full  credit  at  the  time.  So  a  conveyance  of  all  a  man's  proper- 
ty in  trade,  to  pay  a  bona  Jide  debt,  however  meritorious,  and 
however  exceeding  the  vjslue  of  the  property,  is  void,  because 
it  is  out  of  the  course  of  business,  and  must  necescarily  pro- 
duce bankruptcy.  So  although  a  part  merely  colorable  is  ex- 
cepted. So  a  conveyance,  for  the  benefit  of  all  the  creditors 
but  one,  is  void  ;  or  a  conveyance  providing  for  distribution,  as 
the  statutes  of  bankruptcy  would  distribute;  no  man  being  al- 
lowed to  choose  his  own  assignees.  Where  the  debtor's  situa- 
tion and  conduct  clearly  show  his  own  expectation  of  eventual 
bankruptcy,  the  transfer  will  be  void.  Otherwise,  where  he 
bona  fide  hopes  to  escape  such  a  result. (3)* 

(1)  Maicy  V.  Clark,  17  JVlas;?.  330. 

(2)  Hastings  v.  Baldwin,  17  Mass.  5o2.     Burlingame  v.  Bell,  16.318. 

(3)  Hassells  v.  Simpson,  Dougl.  89,  n.  2  Burr.  827.  1  W.  Bl.  362.  1  Brod.  & 
B.408.    Long,  371.    4  B.  &.  Ad.  831.     3  Scott,  229. 

*  The  cases  of  Small  v.  Oudley,  (2  P.  VVms.  427.  I  Burr.  480,)  and  Hooper  v 
Smith,  (1  W.  Bl.  441,)  seem  to  conflict  with  the  general  tenor  of  llie  authorities  on 
this  subject.  But  thess  decisions  are  denied  to  be  law  in  Long  on  Sales,  (379.) 
in  4  Burr.  2240,  Cowp,  124,  and  3  Mass.  325. 

38 


298  WHAT  AVOIDS  A  SALE.  [Chap.  XI. 

31.  Where  a  conveyance  is  void  on  the  above  ground,  though 
the  assignees  may,  they  are  not  bound  to  treat  it  as  void;  but 
may  affirm  and  act  under  it.(l) 

32.  In  order  to  avoid  a  conveyance  for  the  cause  above  refer- 
red to,  it  is  necessary  to  prove,  not  only  that  the  debtor  knew 
himself  to  be  insolvent,  but  that  he  made  the  transfer  in  con- 
templation of  bankruptcy,  and  himself  took  the  first  steps  to- 
wards it,  for  the  purpose  of  giving  an  illegal  preference.  If  the 
conveyance  is  made  through  the  importunity  of  the  preferred 
creditor,  or  under  the  tlireat  or  fear  of  legal  process,  even 
though  such  fear  be  unfounded,  the  law  will  not  avoid  it. 
And  where  the  circumstances  raise  or  admit  a  doubt  as  to  the 
controlling  motive  under  which  a  transfer  or  payment  was  made, 
(or,  in  general,  whether  it  was  a  fraud  upon  the  bankrupt  law)  ; 
the  question  is  for  a  jury  to  settle.  (2) 

33.  To  the  determination  of  this  question  the  maxim  has 
been  applied,  that  every  man  may  be  supposed  to  contemplate 
the  necessary  and  usual  consequences  of  his  acts.  The  neces- 
sary effect  of  a  debtor's  conveying  his  whole  property  to  one 
creditor,  is  to  break  up  his  business,  and  deprive  the  others  of 
their  ordinary  legal  remedy  to  enforce  their  demands.  Hence, 
such  conveyance  is  to  be  deemed  an  act  of  bankruptcy  and 
fraudulent  against  creditors.  (3) 

34.  Where  creditors  express  to  a  debtor  their  determination 
to  obtain  either  payment  or  security,  and  he  thereupon  conveys 
to  them  his  whole  stock,  and  -immediately  quits  his  house  and 
business;  the  law  will  not  intend  that  such  conveyance  was  in- 
duced by  the  urgency  of  creditors  :  because,  if  they  had  taken 
out  immediate  process  against  him,  he  could  have  been  placed 
in  no  worse  situation  than  that  in  which  he  placed  himself  by 
the  transfer;  and  the  conveyance  will  therefore  be  held  void. (4) 

35.  But  where  a  debtor  intends,  voluntarily,  and  in  contem- 
plation of  bankruptcy,  to  make  a  conveyance  to  a  creditor,  and 

(1)  Nixon  V.  Jenkins,  2  H.  Bi.  135. 

(2)  5  B.  &  Ad.  289.  2  Bing.  N.  C.  225.  10  B.  &  C.  44.  9  Bing.  349.  6  C.  & 
F.611.  IT.R.  156.  2  Cr.  M.  &  R.  580.  10  Bing.  408.  3  M.  &  Sc.  127.  3  Scott, 
237.    7  Bin.  432.    5  Taun.  539.    5  B.  &  Ad.  289. 

(3)  Gibson  v.  Boutts,  3  Scott,  236. 

(4)  Thornton  v.  Haigreaves,  7  E.  644. 


Sect.  II.]      FRAUD  AGAINST  CREDITORS,  &  C  299 

does  the  first  act  towards  such  conveyance,  but,  before  its  con- 
summation, the  creditor  takes  measures  to  enforce  payment ; 
the  transfer  is  not  void.  As  where  a  debtor  put  checks  into 
the  hands  of  his  clerk,  to  be  delivered  at  the  creditor's  count- 
ing-house, which  was  done,  but  they  did  not  reach  the  creditor 
till  after  he  had  demanded  payment.  So  where  a  creditor, 
knowing  the  debtor  to  be  embarrassed  and  insolvent,  demanded 
security  about  two  months  before  his  bankruptcy,  and  received 
a  conveyance  of  part  of  his  stock  in  trade  ;  although  the  credi- 
tor did  not  threaten  a  suit,  the  conveyance  was  held  good.  In 
this  case,  the  bankrupt  made  oath  to  the  fairness  of  the  transac- 
tion, and  that  he  did  not  at  the  time  contemplate  bankruptcy.(l) 
36.  Where  the  property  conveyed  by  the  debtor  equitably  be- 
longs to  the  person  to  or  for  whom  the  conveyance  is  made, 
though  legally  a  part  of  the  debtor's  estate;  as,  for  instance, 
where  it  consists  of  money  held  in  trust  for  the  debtor's  chil- 
dren ;  the  conveyance  will  not  be  void,  more  especially  in  the 
absence  of  clear  proof  that  it  was  made  in  contemplation  of 
bankruptcy,  though  the  party  must  have  had  apprehensions  of 
such  an  event.(2)  Thus,  A  had  engaged  to  transfer  bank  stock 
to  B,  to  secure  him  as  an  indorser  for  A.  Not  having  the  stock 
when  applied  to  for  the  transfer,  A,  at  B's  instance,  conveyed 
land  to  C,  who  took  up  the  notes.  Held,  though  A  had  com- 
mitted an  act  of  bankruptcy  before  he  conveyed  the  land,  yet 
the  conveyance  was  valid ;  and  B's  preference,  thus  obtained, 
was  only  a  substantial  fulfilment  of  A's  original  engagement, 
when  B  indorsed  the  notes. (3)* 

(1)  Bayley  v.  Ballard,  1  Camp.  416.     Smith  v.  Payne,  6  T.  R.  152. 

(2)  10  Mod.  489.     1  Burr.  478.  481. 

(3)  M'Mechen  v.  Grundy,  3  Har.  &  J.  185. 

*  Under  ihe  old  bankrupt  law  of  the  United  States,  giving  voluntary  preference  to 
one  creditor  was  not  an  act  of  bankruptcy,  though  if  given  on  the  eve,  and  in  contem- 
plation, of  bankruptcy,  it  was  void.  Hirriaon  v.  Sterry,  5  Cranch,  301.  Locke  v. 
Winning,  3  Mass.  325.  Barnes  v.  Bilhngton,  1  Wasli.  29.  Ogden  v.  Jackson,  1  John. 
370.  The  term  "  conveyance"  in  the  bankrupt  act  meant  an  instrument  under  seal ; 
and  therefore  a  fraudulent  sale  or  transfer  of  personal  property,  unless  by  a  sealed  in- 
strument, was  not  an  act  of  bankruptcy.  Livermore  v.  Bagle)',  3  Mass.  487.  Pay- 
ing money  or  giving  security  to  a  creditor,  in  contemplation  of  bankruptcy,  and  with 
a  view  to  prefer  him,  was  valid,  if  it  were  not  voluntary,  but  the  effect  of  measures  tak- 


300  WHAT  AVOIDS  A  SALE.  [Chap.  XL 

37.  The  following  cases  may  be  cited  in  illustration  of  the 
several  points  above  stated. 

38.  A,  a  trader,  conveyed  all  his  stock  to  B,  by  way  of  secix- 
rity  for  all  the  money  which  B  should  advance  to  him,  but  re- 
tained possession  of  the  property.  Held  an  illegal  preference 
in  fraud  of  the  bankrupt  laws,  and  therefore  void.(l) 

39.  The  brother  of  the  plaintiff,  carrying  on  business  in  two 
shops,  an  upper  and  a  lower  one,  and  being  indebted  to  the 
plaintiff,  assigned  to  him  his  goods  in  the  upper  shop,  being  one 
third  of  his  stock,  for  the  purpose  of  giving  him  a  preference 
and  in  contemplation  of  bankruptcy.     Held  void. (2) 

40.  A,  the  acceptor  of  a  bill,  two  days  before  its  maturity, 
called  upon  B,  the  drawer,  and  informed  him  that  he  was  insol- 
vent. The  drawer  required  payment,  offering  to  secure  to  the 
creditors,  in  the  event  of  a  composition  with  them,  the  proceeds 
of  A's  property.  A  accordingly  paid  the  bill,  and  four  days  af- 
terwards became  bankrupt.  It  appeared,  that  the  bill  had  been 
altered  so  as  to  make  it  fall  due  before  this  transaction,  but  not 
with  the  knowledge  of  B.  Held,  on  the  grounds  that  such  al- 
teration showed  a  fraudulent  intent,  and  that  the  first  movement 
was  made  by  A  and  not  by  B,  the  payment  was  void,  and  A's 
assignees  might  recover  the  amount  in  an  action  for  money  had 
and  received  against  B.(3) 

(1)  VVorselley  v.  De  Mattos,  1  Burr.  467. 

(2)  Linton  v.  Bartlett,  Cowp.  120. 

(3)  Singleton  v.  Butler,  2  B.  &  P.  283. 

en  by  the  creilitor.  1  John.  370.  Phoenix  v.  Dcy,  5  John.  412.  M'Mechen  v.  Grun- 
dy, 3  Har.  &  J.  185.  A  conveyance  to  secure  a  bona  fide  creditor,  i'  made  before 
June  1,  1800,  was  valid,  though  made  in  contemplation  of  bankruptcy,  the  bankrupt 
act  not  having  gone  into  operation  till  that  day.  M'Menomy  v.  Roosevelt,  3  John. 
Ch.  446-  A  deed  executed  and  delivered  before  that  day,  though  not  acknowledged 
lill  after,  was  valid.  Wood  v.  Owings,  1  Cranch,  239.  A,  being  in  embarrassed  cir- 
cumstances, April  15,  1800,  conveyed  certain  lands,  and  May  31,  1800,  executed  a 
writing,  declaring  the  conveyance  to  be  made  in  trust  for  the  payment  of  certain 
preferred  creditors.  June  13,  A  drew  an  order  on  B  his  agent,  directing  him  to  pay 
C  such  monies  as  he  might  receive  from  particular  persons,  which  order  B  on  the 
same  day  accepted.  July  11,  A  committed  an  act  of  bankruptcy,  and,  July  18,  was 
duly  declared  a  bankrupt.  The  assignees  of  A  bring  an  action  against  B,  upon  the 
order.  Held,  the  order  and  acce|)tance  constituted  an  assignment  of  the  funds  refer- 
red to,  and  the  order  was  not  fraudulent,  as  given  m  contemplation  of  bank  ruptcy. 
M'Menomy  v.  Ferrers,  3  John.  71. 


Sect.  II.]      FRAUD  AGAINST  CREDITORS,  &.C.  301 

41.  By  the  usage  of  trade  between  A  and  B,  B  might  either 
keep  or  return  the  goods  sent  him  by  A.  Goods  were  sent, 
February  19,  and  retained  by  B  till  March  4,  on  which  day  and 
the  following  one,  being  then  insolvent,  he  returned  them,  and 
on  March  5,  after  returning  them,  committed  an  act  of  bank- 
ruptcy. Held,  the  act  of  returning  the  goods  was  fraudulent  and 
void,  and  the  property  vested  in  B's  assignees. (1) 

42.  A  purchased  goods  for  B,  and  placed  them  in  the  custom- 
house in  his  own  name.  He  also  handed  to  B  a  bill  of  e.\change 
as  security;  but,  the  bill  proving  to  be  forged,  B  required  an 
immediate  transfer  of  the  goods  to  himself,  which  was  accord- 
ingly made.  Two  days  afterwards,  A  committed  an  act  of  bank- 
ruptcy. Held,  this  was  not  a  voluntary  preference,  and  the 
transfer  was  good. (2) 

43.  A  debtor  transferred  goods  to  his  creditor,  at  the  request 
of  the  latter,  in  part-payment  of  a  debt  not  yet  due,  and  became 
bankrupt  soon  afterwards.  Held,  the  facts  did  not  conclusively 
show  an  unlawful  preference. (3) 

44.  Where  notes  were  given  to  a  creditor  as  collateral  secu- 
rity, and  the  debtor  became  a  bankrupt  on  the  following  day  ; 
held,  the  assignment  of  the  notes  was  void,  and  the  assignee  of 
the  bankrupt  might  maintain  trover  to  recover  them.  The  trans- 
fer, on  general  principles,  would  be  valid,  but  was  held  void  ag 
against  the  policy  of  the  bankrupt  law.  (4) 

45.  A  debtor,  on  the  eve  of  bankruptcy,  sent  by  mail  to  hia 
creditor  a  bill  of  exchange,  without  the  previous  knowledcre  of 
the  latter.  Held,  the  act  was  a  fraud  on  the  bankrupt  laws  and 
void.  It  was  said,  that  all  acts  done  to  defraud  creditors,  or 
against  the  public  law  of  the  land,  such  as  the  statutes  of  bank- 
ruptcy, are  absolutely  void. (5) 

46.  A  trader,  in  contemplation  of  absconding,  enclosed  a  bill 
to  his  creditor  in  discharge  of  the  debt,  saying,  that  he  had  the 
honor  to  show  him  that  preference,  which  he  thought  his  due, 

(1)  Neate  V.  Ball,  2 E.  117. 

(2)  De  Tastet  v.  Carrol,  1  Stark.  88. 

(3)  Hartshorn  v.  Slodden,  2  B.  &  P.  582.     11  E.  256. 

(4)  Locke  V.  Winning,  3  Mass.  325. 

(5)  Alderson  v.  Temple,  4  Burr.  2235 


302  WHAT    AVOIDS    A    SALE.  [Chap.    XI.  • 

The  creditor,  however,  was  not  privy  to  this  act.  Before  the 
bill  could  be  received,  the  debtor  committed  an  act  of  bank- 
ruptcy. Held,  as  the  motive  was  to  give  a  preference  and  the 
act  incomplete,  it  was  void.(i)* 


Section  III. — which  of  two  parties  shall  suffer  by  the 

FRAUD    of    a    third. 

1.  In  some  cases  of  sale,  the  question  arises,  which  of  two 
parties,  both  innocent,  shall  suffer  by  the  fraud  of  a  third  party, 
with  whom  they  have  dealt. (2) 

2.  This  question  is  sometimes  applicable  to  the  case  of  a  sec- 
ond purchaser,  where  the  first  one  had  himself  an  imperfect  ti- 
tle.    The  rule  is,  in  general,  that  one  having  no  title  can  con- 

(1)  Harman  v.  Fisher,  Cowp.  117. 

(2)  See  9  Mass.  55.     6  Mas?.  428. 


*  Upon  the  same  principle  which  renders  void  a  sale  of  [iroperty  made  to  the  inju- 
iry  of  creditors  ;  the  taking  of  property  by  legal  process,  as  security  for,  or  in  satis- 
faction of,  a  fictitious  debt,  is  void  against  bona  fide  creditors.  In  some  of  the  states, 
•this  principle  is  affirmed,  and  forms  of  proceeding  provided  for  enforcing  it,  by  express 
statutes.  It  has  also  been  held  in  Massachusetts,  that  where  a  debtor  and  a  third 
person  conspire  to  defraud  a  creditor,  by  means  of  an  attachment  by  the  latter  upon 
the  former's  property,  on  a  fictitious  debt,  and  the  creditor  thereby  fails  of  securing 
his  debt,  the  debtor  be;ng  insolvent,  the  creditor  may  have  an  action  for  a  conspiracy 
against  them.     Adams  v.  Paige,  7  Pick.  542. 

A  transaction  in  the  nature  of  a  sale  may  be  questioned  as  fraudulent  in  relation  to 
creditors  of  the  vetidee,  as  well  as  those  of  the  vendor.  In  other  words,  creditors  of 
the  vendee  may  seek  to  ho'd  properly,  coming  into  his  hands  by  a  contract  not  amount- 
ing to  a  sale  between  the  parties,  on  the  ground  that  possession  gives  the  vendee  a 
false  credit.  But  the  property  cannot  be  thus  held,  without  proving  actual  fraud. 
Thus  the  plaintiff  furnished  one  A,  an  insolvent,  with  goods,  to  be  sold  at  a  shop  kept  by 
A.  A  was  to  pay  for  them  at  certain  prices,  as  fast  as  he  sold  them.  Whatever  he 
might  obtain  over  those  prices,  was  to  be  his  profits.  The  goods  were  to  remain  the 
plainlifl''s,  and  at  his  risk,  until  sold.  Such  articles  as  should  not  be  sold  were  to  be 
returned  to  the  plaintiff;  such  as  should  be  sold  on  credit,  were  to  be  at  A's  risk  ;  and 
for  all  goods  sold,  he  was  to  account  with  the  plaintiff  at  the  prices  fixed.  Held,  that 
such  a  consignment  was  not  fraudulent  in  law  in  respect  to  A's  creditors,  and  that 
whether  it  was  in  fact  bona  fide,  or  only  a  color  for  a  sale,  was  a  question  for  the  jury. 
Pilttcn  v.  Clark,  5  Pick.  5. 


Sect.    III.]    WHICH    OF    TWO    PARTIES    SHALL    SUFFER,  &C.       303 

vey  none  ;  but  to  this  rule  there  are  some  exceptions.  A  sec- 
ond vendee  acquires  a  title,  (the  first  having  none),  only  where 
he  gives  value  or  incurs  responsibility  on  account  of  the  goods, 
and  has  no  notice.  In  such  case,  there  being  two  innocent  par- 
ties, the  loss  must  fall  on  him  who  enabled  the  guilty  party  to 
commit  the  fraud.(l) 

3.  The  rule,  that  where  one  of  two  innocent  parties  must  suf- 
fer by  the  fraud  of  a  third,  he  must  bear  the  loss  who  confided 
in  the  fraudulent  party,  does  not  apply  to  the  case  of  a  mortgage 
of  chattels,  without  change  of  possession,  so  as  to  throw  the  loss 
of  a  subsequent  sale  by  the  mortgagor  upon  the  mortgagee  in- 
stead of  the  purchaser.  The  rule  would  apply  with  the  same 
force  to  any  bailee  of  property.  (2) 


Section  IV. — sales  void  for  illegality,  &c. 

1.  Contracts  of  sale,  like  all  other  agreements,  are  void,  if 
contrary  to  the  law  of  the  land,  whether  it  be  the  common  law 
or  express  statutory  provisions.  And  it  seems  to  be  now  well 
settled,  that  where  a  statute  imposes  a  penalty  upon  the  doing 
of  a  certain  act,  any  contract  relating  to  the  doing  of  such  act 
is  void,  although  there  are  no  express  words  of  prohibition  in  the 
statute.  The  principle  is,  that  a  court  of  justice  cannot  assist 
in  enforcing  contracts  which  the  law  of  the  land  has  interdicted 
either  expressly  or  by  implication.*  Thus  it  has  been  held,  that 
where  by  the  general  law  a  penalty  is  imposed  upon  any  broker 
of  a  certain  city  who  trades  as  principal ;  the  law  will  not  en- 
force a  contract  by  which  such  penalty  is  incurred. (3)  So 
where  a  statute  provided,  under   a  penalty,  that  all   bricks  sold 

(1)  Root  V.  French,  13  Wend.  572. 

(2)  Lane  v.  Borland,  2  Shepl.  77. 

(3)  Carlh.252.     1  Taun.  136.     Cro.  Eliz.  485.     10  Bing.  110.    9  B.  &  C.  192. 


*  A  contrary  doctrine  seems  to  be  favored  by  an  early  case,  which  decided,  that  a 
fair  held  on  Sunday  was  good,  though  St.  27  Hen.  6,  c.5,  imposed  a  penally  upon  any 
person  selling  on  that  day.    Comyns  v.  Boyer,  Cro.  Eliz.  485. 


304  WHAT  AVOIDS  A  SALE.  [Chap.  XI. 

should  be  of  certain  dimensions ;  it  was  held  that  a  seller  of 
bricks  not  conforming  to  this  measure,  though  selected  by  the 
purchaser,  could  not  recover  the  price ;  this  being  the  only  me- 
thod of  effecting  the  purpose  of  ihe  act,  which  was  to  guard 
the  vendee  against  the  fraud  of  the  vendor.(l)  So  where  the 
plaintiff  was  engaged  in  the  management  of  an  unlicensed  the- 
atre, it  was  held  that  he  could  not  recover  of  the  defendant  mo- 
ney paid  at  his  request  for  dresses  of  the  dancers. (2)  And  if  a 
statute  prohibit  the  buying  of  pheasants,  a  sale  of  them  passes 
no  title. (3)  So  where  a  statute  imposed  a  penalty  for  buying  or 
selling  corn  by  any  other  measure  than  ihe  Winchester  bushel ; 
it  was  held  that  no  action  would  lie  for  the  non-delivery  of  two 
hobbits  of  barley.(3)  So  an  action  does  not  lie  for  the  price  of 
butter  sold  in  firkins  not  marked  according  to  Iaw.(4)* 

2.  But  it  is  said,  that  when  the  consideration  of  a  contract 
and  the  act  to  be  done  are  both  legal  ;  it  seems,  a  plaintiff  will 
not  be  prevented  from  recovering  by  an  infringement  of  the 
law,  not  contemplated  by  the  contract,  in  the  performance  of 
something  to  be  done  on  his  part.  Thus  a  rectifier,  who,  con- 
trary to  St.  6  Geo.  4,  ch.  8,  sold  spirits,  without  a  permit  ex- 
pressing their  true  strength,  was  allowed  to  maintain  a  suit  for 
the  price. (5)  So,  a  distinction  has  been  taken,  between  statutes 
designed  to  protect  the  revenue  only,  and  those  intended  to  pro- 
tect the  public  also  ;  contracts  made  in  violation  of  the  former 
class  being  held  void,  but  not  those  which  violate  the  latter. 
Thus,  where  A,  B,  C,  &.c.  carried  on  the  distilling  business, 
and  C  alone  carried  on  the  retailing  of  spirits  within  two 
miles  of  the  distillery,  contrary  to  St.  4  Geo.  4,  ch.  94,  and  was 
not  named  as  a  partner  in  the  excise  book  or  licence,  conform- 
ably to  St.  6  Geo.  4,  ch.   81  ;  held,  though  the   other  partners 

(1)  Law  V.  Hodson,  11  E.SOO.    8  T.  R.  165.    2  B.  &  B.  265. 

(2)  De  Begnis  v.  Armistead,  10  Bing,  107. 

(3)  Tyson  v.  Thomas.     McClel.  &,  Y.  119. 

(4)  Forster  v.  Taylor,  5  B.  &  Ad.  887. 

(5)  Welherell  v.  Jones,   3  B.  &  Ad.  221. 


*  A  contract  to  deliver  slave-i  cannot  be  enforced  in  Massachusetts.     Greenwood 
V,  Curtis,  4  Mass.  9S. 


Sect.   IV.]  SALE    VO'D    FOR    ILLEGALITY,  &C.  305 

had  knowledge  of  the  above  violations  of  the  law  by  C,  they 
might  still  recover  the  price  of  spirits  sold,  because  these  sta- 
tutes were  mere  revenue  regulations.(l)  So,  where  a  factor 
sold  a  quantity  of  prize-manufactured  tobacco,  consigned  to 
him  from  Guernsey,  making  a  regular  entry  of  it,  but  not  hav- 
ing entered  his  name  with  the  e.Kcise  officer  on  obtainino  a  li- 
cense as  a  tobacco  dealer,  according  to  St.  29  Geo.  3,  ch.  68,- 
held,  as  the  law  was  a  mere  revenue  regulation,  protected  by  a 
specific  penalty,  and  contained  no  declaration  that  such  a  con- 
tract should  be  illegal;  the  seller  might  recover  the  price  of  the 
tobacco. (2)  (The  object  of  the  statute  was  not  to  prevent  the 
sale  of  tobacco,  but  to  impose  a  penalty  upon  those  who  should 
sell  without  license;  and  this  object  would  not  be  impeded  by 
a  recovery  of  the  price  from  a  purchaser.)  So  a  sale  of  goods 
is  not  void,  though  the  vendor  knows  they  are  to  be  applied  to 
an  illegal  purpose,  unless  he  has  himself  a  share  in  the  transac- 
tion. Thus,  although  he  knows  the  goods  are  meant  to  be  used 
in  an  unlawful  trade  and  obtains  permits  for  delivery  to  an 
agent.(3)  So  where  a  horse  was  lent  to  the  defendant  at  a  gam- 
ing table,  and  delivered  by  him  to  the  winning  party;  held, 
the  lender  might  recover  the  value  of  the  horse,  though  loaned 
for  the  purpose  of  enabling  the  defendant  to  stake  upon  the 
game.(4)* 

3.  The  further  distinction  has  been  taken,  that  where  the 
parties  to  the  contracts  are  subjects  of  the  government  whose  law 
they  agree  to  violate,  such  contract  is  void.  And  so,  where  a  fo- 
reigner violates  the  law  of  England,  he  cannot  recover  the  fruits  of 

<i)  Brown  V.  Duncan,  10  B.  &  C.  98.     13  Pick.  518. 
(2)  Johnson  v.  Hudson,  11  E.  180. 
(8)  Hodgson  v.  Temple,  1  Marsh.  5.    5  Taunt.  18h 
(4)  Carsan  v.  Rambert,  2  Bay.  560. 

*  Where  goods  are  bought  fiom  an  enemy  even  in  his  own  territory  by  a  citizen 
cf  the  United  States,  and  sold  hesc  ;  the  sale  is  valid,  and  the  price  may  be  Recover- 
ed, although  the  vendor  might  be  chargeable  with  a  misdemeanor,  and  the  property 
liable  as  prize.  Coolidge  v.  Inglee,  13  Mass.  26.  Where  the  defendant  (during  a  war 
with  Great  Britain,  gave  his  note)  in  consideration  of  receiving  a  British  license 
which  had  been  procured  by  the  plaintiff  without  any  unlawful  intercourse  with  the 
«nemy,  and  was  sold  to  the  defendant  as  a  protection  against  the  British  ;  held,  the 
transaction  was  neither  immoral  nor  illegal,  and  the  note  was  binding.     lb. 

39 


306  WHAT  AVOIDS  A  SALE.  [Chap.   XI- 

his  own  illegal  act.  Thus  if  he  takes  an  actual  part  in  an  unlaw- 
ful adventure,  as,  for  instance,  by  packing  goods  in  an  unlawful 
manner,  he  cannot  recover  the  price.  But  it  is  othervvise, 
where  he  merely  has  knowledge  that  his  vendee  intends  to  use 
the  goods  in  violation  of  the  revenue  laws.  Such  future  use  is 
no  part  of  the  contract,  and  the  unlawful  intention  may  be  aban- 
doned.(I) 

4.  The  following  additional  cases  illustrate  the  principles 
and  distinctions  above  stated. 

5.  A  agreed  to  sell  B  Russian  hemp,  the  ship  to  sail  from 
St.  Petersburgh  by  a  certain  day.  An  English  statute  prohib- 
ited any  person  from  trading  with  Russia,  unless  belonging  to 
a  certain  association  of  merchants.  A,  being  the  importer,  but 
not  a  member  of  this  association,  used  the  name  of  a  member 
at  the  landing-scale  and  in  the  docks.  In  an  action  by  A 
against  B  for  the  price,  held,  to  be  questionable,  whether  the 
action  could  be  maintained,  or  whether  B  was  bound  to  accept 
an  article  which  would  be  immediately  liable  to  seizure. (2) 

6.  One  of  the  plaintiffs,  residing  in  Guernsey,  and  a  partner 
with  the  others,  who  lived  in  England,  received  an  order  from 
the  defendant,  of  Cornwall,  for  a  quantity  of  brandy.  The  de- 
fendant directed  that  the  brandy  should  be  delivered  to  the  mas- 
ter of  a  smuggling  vessel,  and  some  of  it  was  delivered  at 
Guernsey  and  the  rest  at  sea.  The  whole  was  put  into  half- 
ankers,  by  the  partner  at  Guernsey,  and  ready  slung  for  smug- 
gling, but  it  was  brought  to  England  at  the  defendant's  cost. 
Held,  an  action  would  not  lie  for  the  price.  (3) 

7.  So  a  bill  of  exchange,  given  for  ankers  of  gin  and  brandy, 
which  were  shipped  by  the  plaintiff,  and  delivered  on  board  a 
ship  by  order  of  the  defendant ;  was  held  to  be  void. (4) 

8.  The  plaintiff,  a  foreigner,  living  at  Lisle,  sold  the  defend- 
ant, an  Englishman  in  England,  a  quantity  of  lace,  knowing  it 
was  to  be  smuggled,  and  packed  it  in  a  peculiar  manner,  suitable 


(1)  Pellecat  v.  Angell,  2  Cr.  M.  &.  R.  311. 

(2)  Gross  V.  La  Page,  Holt,  105. 
(S)  Biggs  V.  Lawrence,  3  T.  R.  454. 
(4)  Clagas  v.  Penaluna,  4  T.  R.  466. 


Sect.    IV.]  SALES    VOID    FOR    ILLEGALITY,    &.C.  307 

for  this  purpose,  by  order   of  the   defendant.     Held,  no  action 
would  lie  for  the  price.(l)* 

9.  An  English  Statute  of  Geo.  1,  declares  void  all  contracts 
made  by  English  subjects,  for  loading  any  ship  in  the  service  of 
foreigners  with  a  cargo  to  trade  to  the  East  Indies.  The  plain- 
tiffs sold  the  defendant  certain  goods,  to  be  shipped  by  the  de- 
fendant in  London  for  Ostend,  aud  thence  carried  by  other 
vessels  to  India.  Held,  the  plaintiffs  not  merely  aided,  but  act- 
ed as  principals,  in  violating  the  above  act,  and  a  bond  given 
for  the  price  was  void.(2j 

10.  A  ship  was  purchased  by  A,  an  Englishman,  from  B,  an 
American,  but  continued  to  be  registered  as  American.  She 
was  captured  by  a  French  privateer,  condemned,  and  sold  to  C. 
Held,  A  could  not  maintain  trover  against  C,  the  transaction 
being  in  fraud  of  the  law  and  policy  of  the  United  States. (3) 

11.  A,  as  agent  of  B,  in  pursuance  of  an  agreement  between 
them,  and  in  violation  of  an  existing  embargo,  exported  from  the 
United  States  to  New  Brunswick,  goods  belonging  to  B,  thence 
in  an  English  ship  to  the  British  \'/est  Indies;  there  sold  them, 
and  remitted  the  proceeds  in  money  and  produce  of  the  islands 
to  B  in  the  United  States.  A  brings  an  action  against  B  for 
an  account.  Held,  it  could  not  be  sustained,  there  having  been 
one  entire  and  illegal  voyage.  (4) 

12.  A  Statute  of  Geo.  3  forbids  brewers  to  use  any  thing  but 
malt  and  hops  in  the  brewing  of  beer.  The  plaintiff,  a  drug- 
gist, sold  the  defendant,  a  brewer,  a  quantity  of  Spanish  juice, 
isinglass  and  other  articles,  knowing  that  they  were  to  be  used 
in  brewing.  Held,  this  sale  fell  directly  within  the  words  of 
the  Statute  "  causing  or  procuring  any  ingredients  to  be  used," 
&c.  and  no  action  would  lie  for  the  price. (5) 

(1)  Waymell  v.  Reed,  3  T.  R.  593. 

(2)  Lightfoot  V.  Tenant,  1  B.  &  P.  551. 

(3)  Duncanson  v.  McLui-e,  4  Dall.  308. 

(4)  Stuiges  V.  Bush,  5  Day.  452. 

(5)  Langton  v.  Hughes,  1  M.  &  S  593.     3  B.  &  A.  185. 

*  It  has  been  held  in  Pennsylvania,  tliat  where  smuggled  goods  are  .<:old,  the  pur- 
chaser is  not  liable  for  the  price,  unless  perhaps  he  has  knowledge  of  all  the  facts,  and 
agrees  to  run  all  riskr.     Condon  v.  WnH;er,  1  Yeate.«,  483. 


308  WHAT  AVOIDS  A  SALE.  [Chap.  XL 

13.  The  p^a^ntifF  sold  a  quantity  of  ribbons,  knowing  they 
were  to  be  distributed  among  voters.  Strch  distribution  being 
contrary  to  law,  held,  he  could  not  recover  the  price  of  tlTem^.(l) 

14.  A,  living  in  Baltimore,  gave  to  B  a  power  of  attorney  to 
sell  pers&nal  property  in  New  Orleans.  B  accordingly  sold 
certain  slaves,  but  not  conformably  to  the  laws  of  Louisiana. 
C,  an  adverse  claimant,  afterwards  recovered  the  slaves  from 
the  purchaser,  who  brings  an  action  for  indemnity  against  A. 
B  had  not  paid  over  the  price,  but  had  become  insolvent.  Held, 
the  action  did  not  lie,  because  the  sale  was  not  conformable  to 
the  laws  of  Louisiana.  The  purchaser  was  bound  to  see  that 
B  conformed  to  his  powers;  and  he  must  have  had  full  know- 
ledge of  the  facts  which  invalidated  his  title.  A  could  not  be 
presumed  to  have  authorized  a  violation  of  the  laws. (2) 

15.  A  and  B  employed  C  to  sell  for  them  on  commission 
tickets  in  an  unauthorized  lottery,  C  to  be  considered  the  pur- 
chaser of  all  tickets  not  sold  or  returned  by  a  certain  day.  C 
brings  an  action  for  a  prize  drawn  by  one  of  his  tickets.  Held, 
though  the  purchase  of  tickets  by  C  was  not  illegal,  yet  as  the 
agreement  concerning  such  purchase  was  part  of  an  entire  ille- 
gal contract,  the  whole  was  void.  The  statute  having  imposed 
a  penalty  upon  the  act  of  selling,  such  sale  was  by  implication 
prohibited  and  rendered  illegal  ;  and  although,  if  there  had 
merely  been  a  sale  by  the  defendants  to  the  plaintiff,  as  only  the 
sale,  not  the  purchase  was  forbidden,  the  rule  oi  in  pari  delicto 
would  not  apply,  and  the  plaintiff  might  recover  a  prize,  while 
the  defendants  could  not  recover  the  price  of  a  ticket  ;  yet,  the 
plaintiff  being  an  agent  to  sell,  this  maxim  was  applicable,  and 
a  bar  to  the  action. (3)* 

(1)  Baynlun  v.  Cattle,  I  M.  &  Rob.  265. 

(2)  Owings  V.  Hull,  9  Pel.  &Q1. 

(3)  Roby  V.  West,  4  N.  H.  285. 

*  An  agriement  to  sell  tickets  in  the  lottery  ol  another  state  not  authorized  by  the 
laws  of  New  York,  is  against  the  policy  of  the  New  York  statute,  and  void.  Hunt 
V.  Knickerbocker,  5  John.  327.  A  statute  of  Connecticut  prohibited  the  sale  in  that 
state  of  tickets  is."=ued  under  authority  of  any  other  slate.  Held,  it  applied  to  those  is- 
sued under  authorily  of  the  United  Slates.  Terry  v.  Olcott,  4  Conn.  442.  In  Penn- 
sylvania, no  action  lies  to  recover  the  price  of  a  ticket  in  an  unauthorized  lottery.  Nor 
to  recover  the  amnint  of  prizes  drawn  to   a   ticket   bought  after  the  time  limited  for 


i^ect.     IV.]  SALE    VOID    FOR    ILLEGALITY,    &.C.  309 

16.  The  plaintiff,  residing  at  Dunkirk,  sold  a  quantity  of  tea 
to  the  defendant,  knowing  it  was  to  be  smuggled  into  England, 
though  having  himself  no  agency  in  the  smuggling.  Held,  an 
action  would  lie  for  the  price  of  the  tea.  It  would  be  otherwise 
if  the  tea  had  been  sold  to  be  delivered  in  England.(l) 

17.  It  has  been  held  in  Maine,  that  the  Statute  of  1821,  ch. 
160,  to  prevent  fraud  in  firewood,  bark,  &c.  does  not  have  the 
effect  of  avoiding  a  sale  of  cord-wood  less  than  four  feet  in 
length.  The  act  merely  fixes  the  dimensions  of  a  cord,  and  has 
no  other  object.  But  in  Massachusetts,  the  Statute  of  1821, 
ch.  158,  providing  that  no  shingles  be  offered  for  sale,  unless 
they  conform  to  specified  dimensions,  renders  the  sale  of  any 
others  void. (2) 

18.  Contracts  of  sale,  which  are  contrary  to  morality  or  reli- 
gion, or  in  violation  of  the  order  and  welfare  of  society  ;  are 
void.  Thus  one  cannot  recover  the  price  of  immoral,  obscene 
or  libellous  caricatures,  from  a  person  who  gave  a  general  order 
for  all  prints  of  that  description  ever  published;  or  the  price  of 
clothes  sold  to  a  prostitute,  to  promote  the  success  of  her  em- 
ployment, and  under  the  expectation  of  being  paid  from  the  pro- 
fits. Otherwise,  if  the  vendor  merely  had  knowledge  of  such 
person's  criminal  course  of  life.  A  sale  is  not  void,  merely  be- 
cause it  tends  to  promote  immoral  purposes,  unless  made  with 
this  express  object.(3) 

19.  So,  contracts  of  sale  which  are  against  public  policy  can- 
not be  enforced.  Thus  a  sale,  or  contract  for  the  sale,  of  a 
public  office,  unless  expressly  by  law  made  saleable,  is  void.    So 

(1)  Holman  v.  Johnson,  Cowp.  341.  5  Taun.  182. 

(2)  Coombs  V.  Emery,  2  Shepl.  404.  Wheeler  v.  Russell,  17  Mass.  258. 

(3)  11  Wheat.  258.  4  Esp.  97.  6  B.  &  C.  173.  2  C.  &  P.  347.  Brown.  No. 
163.    Story,  Confl.  of  L.  258. 


purchafin-.  Primer  v.  M'Connell,  6  Binn.  329.  2  Browne,  48.  4S.&  11.151.  2 
Whart.  is's.  Biddisv.  James,  6  Binn.  321.  In  Massachusetts,  an  indenture,  con- 
taining an  agreement  to  furnish  money  for  the  purpose  of  "  carrying  on  the  general 
business  of  brokerage,  embracing,  as  time  and  opportunity  shall  give,  the  vending  of 
lottery  tickets,  is  on  the  face  of  it  illegal.  Williams  v.  Woodman,  8  Pick.  78.  (See 
s.21.) 


niO  WHAT    AVOIDS    A    SALE.  [Chap.    XI. 

the  sale  of  the  pay  of  an  officer  or  soldier,  or  the  prize-money 
of  a  sailor,  or  of  the  office  of  deputy  sheriff  or  constable,  or  any 
other  office  of  trust  concerning  the  administration  of  justice. 
So  a  sale  of  the  office  of  clerk  of  a  Court  is  void.  But  the  ob- 
jection that  a  contract  is  against  public  policy  must  be  clearly 
made  out,  in  order  to  be  available.  (1) 

20.  The  owner  of  a  ship  in  employ  of  the  East  India  Compa- 
ny, without  the  knowledge  of  the  company,  sold  the  command  of 
her.  Held,  no  action  would  lie  on  the  agreement,  it  being 
against  the  regulations,  and  in  fraud,  of  the  company,  and  con- 
trary to  public  policy. (2) 

21.  A  vendor  is  bound  to  know  that  he  actually  has  the  thing 
which  he  pretends  to  sell.  And  though  both  parties  know  it  to 
be  subject  to  a  contingency  which  may  immediately  destroy  it, 
yet,  if  the  contingency  has  actually  happened,  the  sale  is  void. (3) 

22.  Upon  a  similar  principle,  in  case  of  a  sale  of  goods,  to  be 
delivered  at  a  furture  time;  if  the  vendor  neither  has  at  the 
time,  nor  has  contracted  for  the  goods,  nor  has  any  reasonable 
expectation  of  receiving  them  by  consignment,  but  intends  to 
go  into  the  market  and  purchase  them ;  no  action  will  lie  for 
non-performance  of  the  contract.  The  transaction  amounts  to 
a  wager  on  the  price,  and  is  of  mischievous  tendency.  This 
principle  was  applied  to  a  suit  brought  against  a  broker,  for  his 
negligence  in  the  sale  of  nutmegs  for  the  plaintiff.  The  broker 
sold  to  a  minor,  who  was  unable  to  pay.  Held,  the  suit  could 
not  be  sustained. (4) 

23.  An  agreement  to  deliver  a  certain  amount  of  6  per  cent, 
stock  at  a  future  time,  for  a  certain  price,  is  a  lawful  contract. 
So,  an  agreement  to  transfer  stock  in  futuro,  the  vendee  ad- 
vancing money,  with  no  intent  to  transfer  it,  but  merely  for 
speculation,  is  not  void.  Though  the  vendor  own  stock  at  the 
time,  and  afterwards,  but  before  the  day  fixed   for  delivery,  sell 

(I)Cowp.  39.  8T.  R.89.  2B.  &C.661.  3T.R.681.  4.248.  2  Bing.  242. 
Duton  V.  Rodes,  3  Marsh.  433.  Carleton  v.  Whitcher,  5  N.  H,  196.  Meredith  v. 
Ladd,'  2  N.  H.  517.  Cardigan  v.  Page,  6.  183.  See  9  Wend.  175.  Haralson  v. 
Dickens,  2  Car.  Law  Repy.  66. 

(2)  Blachford  v.  Preston,  8  T.  R.  89. 

(3)  Allen  v.  Hammond,  11  Pet.  63. 

(4)  Bryan  v.  Lewis,  Ryati  &  M.  386. 


Sect.    IV.]  SALE    VOID    FOR    ILLEGALITY,     &C.  IJll 

a  part  of  it,  the  statute  of  New  York  is  inapplicable.  It  avoids 
a  sale,  only  when  the  vendor  does  not  own  stock  at  the  time 
of  sale.  (1) 

24.  A  seller  of  lottery  tickets  may  legally  sell  them  after  the 
drawing,  if  ignorant  of  the  result.(2)     (See  ante  15  &-  n.) 

25.  Where  part  of  the  consideration  of  a  sale  is  illegal,  the 
whole  transaction  is  void. (3) 

26.  The  plaintiff  cut  logs  upon  the  land  of  another  person, 
without  license,  and  sold  them  on  credit  to  the  defendant,  who 
had  notice  of  the  facts,  the  defendant  agreeing  to  take  them, 
subject  to  the  claim  of  the  owner.  In  a  suit  for  the  price,  held 
there  was  no  good  defence  on  the  ground  of  want  or  illegality  of 
consideration. (4) 

27.  At  common  law,  a  sale  is  not  invalid  because  made  on 
Sunday.  St.  29  Car.  2,  c.  7,  declared  void  all  sales  made  by 
persons  in  their  ordinary  calling  on  that  day.  But  where  one 
party  was  ignorant  that  the  other  made  the  contract  in  his  ordi- 
nary calling,  the  former  is  not  deprived  of  his  right  of  action. 
And  a  subsequent  promise  to  pay  for  an  article  thus  unlawfully 
sold,  will  sustain  an  action  upon  a  "  quan.  mer."(5) 

(1)  Gilchreest  v.  Pollock,  2  Yeates,  18.     Frost  v.  Clarkson.  7  Cow.  24. 

(2)  Bishop  V.  Williamson,  2  Fairf.  495. 

(3)  Carleton  v.  Whitcher,  5  N.  H.  196. 

(4)  Baker  v.  Page,  2  Fairf.  381. 

(6)  1  Taun.  131.    7  B.  &  C.  96.  597.    6  Biiig.  653.     1  Cr.  &  J.  180. 


CHAPTER  XII. 


REMEDIES  IN  CASE  OF  SALE,— FORMS  OF  ACTION, 
DEFENCES,  EVIDENCE,  DAMAGES,  &c. 

Section  I. — necessity  of  a  demand  or  tender. 
Section  II. — action  for  goods  sold  and  delivered. 

2.  Express  promise  and  agreed  price  unnecessary. 

3.  Security  given,  which  proves  of  no  value. 

4.  Goods  received  hy  the  defendant — promise  implied. 
7.  But  there  must  be  a  sale. 

15.   Goods  not  received  hy  the  vendee. 
17.  Sale  incomplete — the  action  does  not  lie. 
19.  Goods  not  deliverable  without  payment — no  action  till  de- 
livery. 
22.  Special  contract — disaffirmed — an  action  lies. 
33.  Rule  of  practice  ;  inspection  of  goods. 

Section  III. — action  for  goods  bargained  and  sold. 

1.    Where  it  lies,  in  general. 
6.  Re-sale  by  the  vendor. 
9.  Contract  of  sale  or  return. 
11.  Privity  of  contract  necessary. 

Section  IV. — action  for  money  had  and  received. 

1.  By  a  vendee,  to  recover  the  price  paid. 


Sect.  I.]     NECESSITY  OF  A  DEMAND  OR  TENDER.         313 

2.  For  the  proceeds  of  froperty  wrongfully  taken  or  withheld, 
or  fraudulently  purchased. 

Section    V. — forms  of    declaring    in    actions    upon    the 

CONTRACT    of    SALE. 

1.  Non-delivery  of  goods  sold. 

2.  Warranty  of  title. 

3.  Special  and  general  counts. 

4  Performance  of  condition  by  the  plaintiff. 
10.  3Iiscellaneous  cases. 

Section  VI. — variance  between  averments  and  proofs. 

1.  In  relation  to  the  parties. 

6.  Iji  relation  to  the  property  sold. 

13.  The  price. 

16.  Performance  of  condition. 

17.  Alternative  contract. 

Section  VII. — defences. 
Section  VIII. — amount  of  damages. 


Section  I. — necessity  of  a  demand  or  tender. 
{See  Section  V.) 

1.  The  question  sometiraes  arises,  whether  a  previous  de- 
mand or  tender  is  necessary  to  sustain  an  action  upon  the  con- 
tract of  sale. 

2.  A  sold  and  delivered  to  B  a  quantity  of  wheat,  B  agreeing 
to  pay  him  therefor  such  quantity  of  flour  as  the  wheat  should 
be  worth,  upon  request.  In  a  suit  against  B  upon  the  contract, 
held,  A  must  aver  and  prove  a  special  demand  for  the  fl^our,  be- 
fore suit  commenced. (1)* 

(1)  Ewing  V.  French,  1  Blac.  170.  


*  So  in  an  action  on  a  note  payable  in  specific  articles  on  demand,  the  plaintiff 

40 


314  REMEDIES    IN    CASE    OF    SALE,    &C.       [Chap.    XII. 

3.  An  action  lies  for  the  non-delivery  of  goods,  though  no 
demand  be  made  for  them  till  after  the  time  appointed  for  pay- 
ment, unless  there  have  been  unreasonable  delay,  or  proof  of 
inability  or  refusal  on  demand  to  pay  for  them.(l) 

4.  The  defendant,  in  consideration  of  the  plaintiff's  buying 
a  quantity  of  hay  from  him,  promised  the  plaintiff  to  deliver  the 
hay  and  suffer  the  plaintiff  to  take  it  away  as  wanted,  when  re- 
quested. The  declaration  alleged,  that  the  defendant,  after  suf- 
fering the  plaintiff  to  take  a  part  of  the  hay,  sold  the  remainder 
of  it  to  other  persons  ;  but  no  request  for  delivery.  Held  suf- 
ficient. (2) 

5.  A  agrees  to  buy,  and  B  to  sell  goods,  at  a  certain  price, 
and  to  be  delivered  between  certain  days.  In  an  action  for 
non-delivery,  the  plaintiff  need  not  aver  a  tender  and  refusal  of 
the  price,  but  only  that  he  was  during  the  whole  time  and  still 
is  ready  and  willing  to  receive  and  pay  for  the  goods. (3) 


Section  II. — action  for  goods  sold  and  delivered. 

1.  The  ordinary  action  to  recover  the  price  of  goods  sold,  is 
indebitatus  assumpsit  for  goods  sold  and  delivered. 

2.  To  sustain  an  action  for  goods  sold  and  delivered,  it  is 
not  necessary  to  prove  an  express  promise  to  pay.  The  order- 
ing of  an  article,  or  bidding  for  it  at  auction,  includes  a  promise 
to  pay,  if  it  be  actually  obtained  by  the  vendee.  The  transac- 
tion is  itself  a  promise,  rather  than  something  from  which  a 
promise  is  inferred.  And,  if  matter  of  inference,  the  question  is 
for  the  jury,  not  for  the  court.(4)  So  this  action  lies,  though 
no  price  were  agreed  upon. (5) 

(1)  Dox  V.  Dey,  3  Wend.  356. 

(2)  Bowdell  V.  Parsons,  }0  E.  359. 

(3)  Waterhouse  v.  Skirmer,  2  B.  &  P.  447. 

(4)  Adams  V.  Steamboat  Co.,  3  Whart.  75.     Button  v.  Solomonson,  3  B.  &  P.  585. 
(6)  Jenkins  v.  Richardson,  6  J.J.  Mar.  441.     Snodgrass  v.  Broadwell,  2  Litt.  355. 


must  prove  a  demand  prior  to  the  commencement  of  suit.    Greenwood  v.  Curtis,  6 
Mass*  358. 


Sect.    II.]       ACTION    FOR    GOODS    SOLD    AND    DELIVERED.  315 

3.  Where  there  is  a  subsisting  debt  for  the  sale  of  goods,  and 
time  is  given  for  payment  upon  the  vendee's  giving  notes  for 
the  price,  which  prove  to  be  of  no  value  ;  an  action  lies  for 
goods  sold  and  delivered. (1)     (See  infra,  8,  26.) 

4.  Where  the  defendant  is  proved  to  have  received  and  used 
the  goods  in  question  ;  this  is  prima  facie  evidence  to  sustain 
an  action  for  geods  sold,  &lc*  Thus,  A  agreed  to  find  ma- 
terials and  build  a  chimney  for  B,  and,  if  he  did  not  build  a 
good  one,  was  to  have  no  pay.  The  work  was  done,  but  so 
badly,  that  B  wasobliged  to  take  down  and  rebuild  the  chim- 
ney, using,  however,  the  old  materials.  Held,  A  might  recover 
of  him  the  value  of  such  materials.(2) 

5.  The  plaintiff  sent  goods  to  the  defendant  abroad,  upon 
the  order  of  certain  merchants  in  London,  and  the  defendant 
received  and  used  them.  Held,  this  was  prima  facie,  though 
slight  evidence,  to  sustain  an  action  for  goods  sold  and  deliver- 
ed.(3) 

6.  The  plaintiff,  a  book-publisher,  having  for  a  long  time 
furnished  to  one  A  a  periodical  publication,  after  the  death  of 
A,  of  which  the  plaintiff  was  ignorant,  continued  to  forward  the 
work  by  stage,  directed  to  A,  as  before.  The  defendant,  who 
succeeded  to  the  properly  of  A,  received  the  numbers,  as  they 
were  sent,  and  never  offered  to  return  them.     Held,  although 


(1)  Stedman  v.  Gooch,  1  Esp.  5.    (See  Puckford  v.  Maxwell,  6  T.  R.  52.    Owen- 
son  V.  Morse,  7  T.  R.  64.) 

(2)  EUiott  V.  Wilkinson,  8  Yerg.  411. 

(3)  Bennett  v.  Henderson,  2  Stark.  550. 


*  Where  goods  are  delivered  to  A  on  the  credit  or  request  of  B,  an  action  for 
goods  sold,  &c.  lies  against  B.  Stapp  v.  Anderson,  1  Marsh.  539.  Bickham  v.  Irwin, 
3  Yeates,  66.  But  a  special  action  only  will  lie,  where  B  merely  guarantees  payment 
by  A.  So  where  A  sold  and  delivered  aoods  to  B,  under  a  verbal  agreement  with  C 
that  C  should  pay  if  B  did  not  ;  and  C  having  paid  A,  brings  an  action  against  B 
in  A's  name  ;  held,  it  would  not  lie.  Barnes  v.  Blackiston,  2  Har.  «fe  J.  376.  hideb. 
assump.  lies  for  necessaries  furnished  to  a  wife,  child  or  slave.  13  John.  480.  14.  188. 
5Wend.558.  16  Mass.31.  So,  against  one  who  promised  to  pay  for  necessaries  fur- 
nished to  a  feme  covert  and  her  children,  though  the  husband  lived  in  the  state,  and 
the  defendant  was  under  no  prior  obligation  to  provide  for  the  wife,  &c.  Lanier  v. 
Harwell,  6  Munf.  79. 


316  REMEDIES    IN    CASE    OF    SALE,    &C.        [Chap.    Xll. 

the  plaintiff  had  no  knowledge  of  the  defendant  as  purchaser, 
an  action  for  goods  sold  and  delivered  would  lie  against  him.(l)* 

7.  In  order  to  sustain  an  action  for  goods  sold  and  delivered, 
there  must  have  been  a  sale  from  the  plaintiff  to  the  defendant. 
Hence,  where  the  plaintiff  declared  in  this  form,  and  the  evi- 
dence proved,  that  the  defendant  had  received  the  goods  from 
him  under  an  authority  to  dispose  of  them  in  a  certain  way,  and 
had  disposed  of  them  in  a  different  way ;  held  a  fatal  variance. 
So,  proof  that  the  plaintiff  had  consigned  goods  to  the  defend- 
ant for  sale,  and  that  part  of  them  had  been  sold  by  the  defend- 
ant, does  not  support  this  count. (2)t 

8.  Goods  were  sold  by  A  to  B,  to  be  paid  for  by  a  bill  of  ex- 
change drawn  by  C  upon  D,  without  recourse  to  B  in  case  of 
non-payment.  B  knew  that  the  bill  was  of  no  value.  Held,  A 
could  not  maintain  indebitatus  assumpsit  against  B  for  the  price 
of  the  goods.  His  remedy  must  be  an  action  of  trover  or  de- 
ceit. The  goods  were  in  effect  to  be  bartered  for  theliill  of  ex- 
change.(3)     (See  supra,  3.  infra,  26.) 

9.  The  plaintiff  sold  to  the  defendant  a  quantity  of  beer  in 
casks,  and  gave  him  notice  that  unless  he  returned  the  casks  in 
a  fortnight,  he  should  be  regarded  as  having  purchased  them. 
The  casks  not  being  returned,  the  plaintiff  brings  an  action  as 
for  goods  sold  and  delivered.     Held,  he  could  not  recover  in 

(1)  Weatherby  v.  Banham,  5  C.  «fc  P.  228. 

(2)  Shepard  v.  Palmer,  6  Conn.  95.     Colman  v.  Price,  1  Blackf.  303. 

(3)  Read  v.  Hutchinson,  3  Camp.  352. 


*  Where  one  duly  authorized  buys  goods  for  another,  who  receives  and  has  the 
benefit  of  them,  the  vendor  may  sue  the  latter  for  the  price,  though  he  have  paid  the 
former  ;  unless  the  vendor  has  done  some  act  to  discharge  him.  Emerson  v.  Provi- 
dence, &LC.  12  Mass.  237.  So,  if  A,  without  authority,  buy  goods  as  the  acrent  of  B, 
who  receives  them,  B  is  liable  to  the  vendor,  unless  lie  has  paid  A.  Kupfer  v.  Inhts., 
&c.  12  Mass.  185.  But  where  A  agreed  with  B,  that  B  should  do  work  for  him,  and 
find  materials,  which  B  accordingly  bought  from  C  in  his  own  name,  and  used  for  A's 
benefit,  and  A  paid  B  for  them  ;  held,  A  was  not  liable  to  C.  Clark  v.  Imlay,  7  Halst. 
119. 

\  A  was  employed  by  B  to  sell  goods  on  commission.  A  sold  some  of  them,  re- 
ceiving part  of  the  price,  which  he  entrusted,  with  the  remaining  goods,  to  C,his  clerk, 
■who  absconded  with  the  money  and  goods.  B  brmgs  assumpsit  fjr  goods  sold,  &c 
svga-inst  A.     Held,  the  action  would  not  lie.     Read  v.  Bertrand,  4  VVash.C.  514. 


Sect.  II.]     ACTION  Fon  goods  sold  and  delivered.         317 

this  form,  but  must  declare  upon  the  special  agreement,  arising 
out  of  the  above  notice. (1)     (See  Goods  bargained  and  sold.) 

10.  The  plaintiff  issued  the  following  ad'/ertisement — **  the 
public,  &.C.  served  with  new  clothes  at  the  following  low  rates 
per  annum,  on  return  of  those  left  off"  The  defendant  having 
contracted  with  him  for  four  suits  in  a  year  and  return  of  the 
old  ones,  or  for  the  use  o)'  wear  and  tear  of  four  suhs  per  an7ium  ; 
held,  the  plaintiff  could  not  recover  in  a  count  for  goods  sold 
and  delivered,  but  must  declare  upon  the  special  contract.  It 
seems,  this  contract  included  an  obligation  to  mend,  which 
therefore  could  not  be  made  the  subject  of  a  distinct  charge.  (2) 

11.  Agreement  between  A  and  B,  that  A  shall  labor  for  B, 
and  receive  payment  in  goods.  A  part  of  the  labor  was  done 
after  delivery  of  the  goods.  B  brings  an  action  for  goods  sold, 
&,c.  and  A  files  no  account  in  offset.  Held,  the  action  did  not 
lie,  the  goods  not  being  sold,  but  delivered  in  payment  of  a 
debt.(3) 

12.  A  agreed  with  B,  to  cut  on  B's  land,  and  draw  and  deliver 
to  him,  a  quantity  of  spars;  which  he  accordingly  did  cut,  and 
one  C  delivered  them  to  B,  and  received  the  money.  Held,  A 
could  not  maintain  an  action  for  goods  sold  and  delivered  against 
C.(4) 

13.  The  defendant  having  agreed  with  one  A  to  take  goods 
of  him,  to  be  manufactured  for  A  by  the  plaintiff;  the  plaintiff 
sent  goods  to  the  defendant,  who  credited  them  to  A,  and  on 
subsequent  settlement  accounted  for  them  with  him.  The  plain- 
tiff, though  seasonably  advised  of  the  credit  given  B,  did  not  no- 
tify the  defendant  till  after  the  settlement,  that  the  goods  were 
delivered  on  account  of  the  defendant  and  not  of  A.  The  plain- 
tiff  brings  an  action  for  goods  sold  and  delivered  against  the 
defendant.     Held,  the  action  would  not  lie. (5) 

14.  In  general,  where  there  is  a  contract  for  exchange,  and 
one  party  brings  a  suit  against  the  other   for  non-delivery   ac- 

( 1 )  Lyons  v.  Barnes,  2  Stark.   39, 

(2)  Rees  v.  Manners,  3  Smith,  119. 

(3)  Wilby  V.  Harris,  13  Mass.  496. 

(4)  Weed  v.  Bulterfield,  1  Chip.  161. 

(5)  Farwell  v.  Smith,  12  Pick.  83. 


318  REMEDIES    IN    CASE    OF  SALE,  &C.       [Chap.  XII. 

cording  to  agreement ;  the  contract  nDust  be  specially  set  forth 
in  the  declaration.  But  where  A  agrees  to  give  a  horse,  war- 
ranted sound,  in  exchange  for  a  horse  of  B  and  a  sum  of  money, 
and  the  exchange  takes  place,  but  B  refuses  to  pay  the  money  ; 
A  may  have  an  action  for  goods  sold  and  delivered  against 
him.(l)*     (See  infra,  22.) 

15.  Where  goods  sold  are  sent  to  the  vendee,  but  he  fails  to 
receive  them  through  his  own  neglect,  this  action  lies  against 
him. 

16.  In  November  1802,  A  ordered  goods  from  B  at  London, 
writing  to  him  to  send  them  by  any  conveyance  which  would 
reach  Bristol,  as  he  (A)  lived  only  six  miles  from  thence  ;  and 
to  inform  him  when  they  were  sent,  that  he  might  know  when 
to  expect  them.  B  sent  the  goods  to  the  wharf  at  which  Bristol 
vessels  lay,  took  a  receipt  for  them  to  go  by  the  Commerce,  and 
notified  A  accordingly.  The  Commerce  sailed  in  January  1803, 
but,  being  fully  loaded,  the  goods  did  not  go  by  her,  but  were 
afterwards  carried  by  another  vessel,  the  Nancy,  which  sailed 
in  April.  The  usage  at  the  wharf  was,  to  give  a  receipt  for 
goods,  as  if  to  be  sent  by  vessels  then  loading,  whether  a  full 
freight  had  been  already  taken  or  not ;  and  if  it  had,  to  send 
them  by  the  next  vessel.  The  Commerce  having  arrived  with- 
out bringing  the  goods,  A  made  no  further  inquiries  for  them. 
B  also  was  ignorant  that  they  went  by  another  vessel,  till  in  the 
middle  of  the  year  1804  he  demanded  payment,  and  A  wrote 
that  he  had  not  received   them.     B  then   informed  A  how  they 

(1)  Sheldon  V.  Cox,  3  B.  &  C.  420. 

*  General  indob.  assump.  lies  to  recover  the  value  of  goods  sold  and  delivered, 
where  the  plaintiff  agreed  to  receive  specific  articles  in  payment,  but  the  defendant 
has  broken  his  contract  to  deliver  ihem.  Baylies  v.  Fettyplace,  7  Mass.  329.  So, 
where  goods  have  been  delivered  in  part  execution  of  a  special  contract,  wliinh  is  re- 
scinded by  mutual  consent.  Goodrich  v.  Lafflin,  1  Pick.  57.  Thus  where  A  and  B 
mutually  agree  to  deliver  goods  to  each  other,  and  A,  having  in  part  performed  the 
agreement,  brings  an  action  for  the  value  of  the  goods  delivered,  and  recovers  ;  B  may 
do  the  same.  lb.  Where  one  contracts  to  do  certain  work  and  find  ihe  materials' 
and  proceeds  in  fulfilling  his  agreement  with  an  honest  intention  of  conforming  there- 
to, but  not  in  the  precise  manner  contracted  for;  he  may  recover  upon  a  quan.  mer. 
so  much  of  the  agreed  price,  as  remains  after  deducting  the  dimiaulion  of  value  caused 
by  the  deviations.    Ilayward  v.  Leonard,  7  Pick.  181. 


Sect.  II.]   ACTION  FOR  GOODS  SOLD  AND  DELIVERED.     319 

were  sent.  Held  B  could  sustain  a  suit  for  goods  sold  and  de- 
livered. The  risk  was  A's,  and  the  wharfinger  was  his  agent, 
not  B's.     A  was  guilty  of  gross  negligence. (1) 

17.  But  the  action  does  not  lie,  where  a  sale  is  incomplete, 
notwithstanding  a  previous  tender  of  the  goods  by  the  vendor. 

18.  A  agreed  with  B  to  deposit  with  C  a  certain  sum  of  mo- 
ney, as  B's  price  for  a  horse,  which  C  was  thereupon  to  deliver 
to  A ;  B  to  use  the  horse  in  the  mean  time.  B,  having  tender- 
ed the  horse  and  demanded  the  money  left  with  C,  brings  an 
action  for  goods  sold,  &c.  Held,  the  sale  was  incomplete,  and 
the  plaintiff  could  not  recover.  (2)* 

19.  Where  the  vendor  has  manifested  his  determination  not 
to  deliver  the  goods  without  payment,  he  cannot  maintain  an 
action  for  goods  sold  and  delivered  until  actual  delivery. 

20.  Thus,  where  goods  are  sold  for  cash,  and  packed  in  box- 
es of  the  purchaser  for  him  and  in  his  presence,  but  not  remov- 
ed from  the  vendor's  premises,  nor  paid  for  ;  the  latter  cannot 
maintain  an  action  as  for  goods  sold  and  delivered,  although  the 
facts  may  show  a  sufficient  acceptance  by  the  purchaser  to  take 
the  case  out  of  the  Statute  of  Frauds.  The  boxes  cannot  be 
considered  the  defendant's  warehouse,  nor  did  the  plaintiff  ever 
intend,  by  packing  the  boxes,  which  were  to  remain  in  his  own 
custody,  on  his  own  premises,  to  give  up  the  goods  without  pay- 
ment.(3) 

21.  A  agreed  to  sell  goods  to  B,  who  paid  a  shilling  as  ear- 
nest money.  The  goods  were  packed  in  cloths  supplied  by  B, 
and  deposited  in  a  building  of  A's,  till  B  should  send  for  them  ; 
but  A  at  the  same  time  declared  that  they  should  not  be  taken 
away  without  payment.  Held,  there  was  no  delivery  of  the 
goods,  and  an  action  for  goods  sold  and  delivered  did  not  lie.(4) 

( 1 )  C  ooke  V.  Ludlow,  2  N.  R.  1 1 9. 

(2)  Branson  V.  Gales,  3  Murph.  312. 

(3)  Boulter  v.  Arnott,  I  Cromp.  &  Mees.  333. 

(4)  Goodall  V.  Skelton,  2  Hen.  Bl.  316. 

*  When  a  mecharac  has  made  an  article  according  to  contract,  and  tendered  it, 
and,  on  the  customer's  refusing  to  accept  and  pay  for  it,  has  left  it  with  a  third  person 
giving  notice  to  the  customer;  he  may  immediately  bring  an  action  to  recover  the 
agreed  price.    Beraent  v.  Smith,  15  Wend.  493. 


320  nEMEDiES  IN  CASE  OF  SALE,  &c.     [Chap.  XII. 

22.  Where  the  sale  is  founded  on  a  special  contract,  upon 
which  alone  an  action  could  otherwise  be  sustained,  this  con- 
tract may  be  disaffirmed  by  some  act  of  the  vendee,  and  there- 
upon an  action  for  goods  sold  and  delivered  sustained  against 
him,  though  the  contract  has  been  only  in  part  performed.  (See 
supra,  14.) 

23.  Agreement  to  buy  a  lot  of  trees  for  a  certain  sum,  and 
pay  for  them  according  to  certain  conditions.  The  conditions 
contained  a  proviso,  that  on  non-payment  of  the  price  or  a  part 
thereof  according  to  the  conditions,  the  vendor  might  retain  or 
retake  the  timber.  The  vendee  cut  and  carried  away  a  part 
without  paying  for  them,  and  refused  to  pay  till  delivery  of  the 
rest.  Held,  the  entirety  of  the  contract  was  disaffirmed  by  the 
vendee,  and  an  action  might  be  sustained,  as  for  goods  sold  and 
delivered,  for  the  price  of  the  trees  actually  taken  ;  a  count  on 
the  special  contract  being  unsupported,  by  reason  of  a  variance 
in  alleging  an  auction  sale  instead  of  a  private  one.(l) 

24.  Sale  at  auction,  payment  to  be  made  by  an  approved  note 
at  six  months.  The  goods  were  delivered,  but  the  vendee  re- 
fused to  give  a  note.  The  vendor  brings  an  action  for  goods 
sold,  &,c.  Held,  the  condition  of  the  sale  having  been  broken 
by  the  defendant,  the  plaintiff  might  treat  it  as  absolute,  and 
the  action  would  lie.  (2) 

25.  Sale  and  delivery  of  goods.  The  vendee  afterwards 
gave  his  note  on  time  for  the  price,  with  the  agreement  that  un- 
less one  A  would  say  that  the  vendee  was  able  to  pay  the  note 
when  due,  the  vendor  should  have  an  immediate  claim  for  the 
debt.  A  having  refused  to  make  this  statement,  held,  the  ven- 
dor might  immediately  bring  an  action  for  goods  sold,  &c.(3) 

26.  If  a  vendor  of  goods  receive  a  chose  in  action  as  collate- 
ral security  for  the  price,  but  realize  nothing  from  it,  he  may 
bring  this  action,  and  need  not  sue  upon  the  special  contract. (4) 
(See  supra,  3.  8.) 

27.  A  sold  to  B  the  note  of  a  corporation,  together  with  two 

(1)  Bragg  V.  Cole,  6  Moo.  114. 

(2)  Coilies  V.  Gardner,  2  Hall,  345. 

(3)  Clark  v.  Smith,  9  Conn.  379. 

(4)  Leas  v.  James,  10  S.  «fc  R.  307. 


Sect.    II.]       ACIION    FOR    coons    SOLD    A.ND    DKLIVERED.  321 

shares  of  the  stock,  for  which  he  was  to  be  paid  in  whiskey. 
A  knew  the  company  to  be  insolvent,  but  represented  it  as  re- 
sponsible. B  gave  A  his  notes  or  contracts  to  deliver  the  whis- 
key, which  was  accordingly  delivered  ;  but,  on  ascertaining  the 
company's  insolvency,  he  offered  to  return  the  note  and  shares, 
and  now  brings  an  action  for  goods  sold  and  delivered,  to  re- 
cover the  value  of  the  whiskey.  Held,  the  action  would  lie, 
the  special  contract  as  to  the  method  of  paying  for  the  whiskey 
being  vitiated  by  the  fraud  of  A.(l) 

28.  A  buys  goods  of  B,  transferring  to  him  the  note  of  C, 
and  guaranteeing  payment  of  it.  Upon  non-payment  of  the  note 
at  maturity,  B  may  bring  an  action  against  A  for  goods  sold, 
&c.(2) 

29.  "Where  a  vendee  reserves  the  right  of  paying  for  the 
goods  in  specific  articles  within  a  certain  time,  he  may  do  it 
within  such  time,  without  any  demand  or  designation  -,  and,  if  he 
<Joes  not,  the  vendor  may  bring  an  action  for  the  price  without 
a  previous  demand. (3) 

30.  The  following  cases  seem  somewhat  repugnant  to  those 
above  cited. 

31.  A  and  B  make  an  exchange  of  goods.  A  having  prac- 
tised a  fraud,  B  rescinds  the  bargain,  calls  on  A  to  come  and 
receive  back  the  property  which  he  (A)  had  given  in  exchange, 
and  brings  indeb.  assump.  for  the  value  of  his  own  goods. 
Held,  the  action  did  not  lie  without  an  actual  return  of  the 
goods. (4) 

32.  Sale  at  auction,  on  condition  thai  purchasers  of  not  less 
than  a  certain  amount,  should  have  twelve  months'  credit,  giv- 
ing bond  with  surety  ;  and  that  those  who  did  not  comply  with 
these  terms,  should  pay  one  fifth  of  the  price  for  disappointing 
the  sale,  and  return  the  goods  before  sunset.  The  defendant 
bought  a  horse,  which  was  delivered,  but  no  bond  given.  He  kept 
the  horse  some  days,  and  then  offered  to  return,  but  the  plain- 


{\)  Pierce  V   Drake,  15  John.  4t5. 

(2)  Butler  V.  Haight,  8  Wend.  535. 

(S)  Way  V.  Wakefield,  7  Verm.  223. 

(4)  Norton  t.  Young,  3  Greenl.  30.     4  Mass.  605 

41 


323  REMEDIES    IN    CASE    OF    SALE,    &C,       [Chap.    XII. 

tiff  would  not  receive  him.     Held,  indeb.  assump.  would  not  lie 
for  the  price,  till  after  twelve  months  had  expired. (i) 

33.  In  an  action  for  goods  sold  and  delivered,  the  Court  will 
not  compel  the  defendant  to  allow  an  inspection  of  the  goods, 
for  the  purpose  of  enabling  the  plaintiff  to  identify  them. 
There  is  no  instance  of  the  Courts  ordering  such  a  proceeding, 
unless  the  thing  to  be  inspected  belongs  to  both  parties  alike ; 
as  in  case  of  a  written  agreement.  The  plaintiff  may  demand 
of  the  defendant  to  allow  an  inspection  by  his  (the  plaintiff's) 
witnesses,  and  may  avail  himself  in  evidence  of  the  defendant's 
refusal.  But  the  principle  does  not  require  a  defendant  to  give 
evidence  out  of  his  own  hands,  which  will  injuriously  affect 
himself.  The  Court  may  always  impose  terms  upon  the  plain- 
tiff, but  not  upon  the  defendant,  except  as  the  condition  of 
granting  a  favor  asked  by  him.  The  plaintiff's  relief,  in  the 
present  case,  if  any,  is  in  Equity. (2) 


Section  III. — action  for  goods  bargained  and  sold. 

1.  Similar  to  the  action  for  goods  sold  and  delivered,  is  that 
for  goods  bargained  and  sold.  The  latter  is  usually  brought, 
where  the  former  does  not  lie  for  want  of  a  delivery  or  accep- 
tance. 

2.  The  action  for  goods  bargained  and  sold  does  not  lie,  un- 
less there  was  an  actual  sale  of  goods  in  existence  at  the  time, 
or  a  specific  appropriation  of  goods,  afterwards  assented  to  by 
the  vendee. (3) 

3.  This  count  can  be  sustained,  only  where  the  property  has 
passed  to  the  vendee,  so  that  he  might  bring  trover,  and  must 
bear  the  loss  in  case  of  theft  or  fire. (4)  The  distinctions  in  the 
various  cases  on  this  subject  are  said  to  run  extremely  fine. (5) 

(1)  Thompson  v.  Morris,  2  Murph.  248. 

(2)  Dell  V.  Taylor,  6  D.  &  R.  388. 

(3)  Atkinson  V.  Bell,  2  M.  &  R.  292. 

(4)  Per  Tindal,  Ch.  J.,  Elliott  v,  Pybus,  10  Bing.  616 

(5)  Alexander  v.  Gardner,  1  Scolt,  640. 


Sect.    III.]    ACTION    FOR    GOODS    BARGAINED    AND    SOLD.  323 

4.  Where  a  vendee  refuses  to  take  the  goods,  upon  the 
ground  that  they  are  damaged,  when  in  fact  they  are  not,  an 
action  for  goods  bargained  and  sold  lies  against  him.  And  the 
measure  of  damages  is  the  value  of  the  goods.  (1) 

5.  Where  one  sells  from  a  large  parcel  of  goods,  and  it  is  at 
his  option  to  select  a  part  for  the  purchaser,  no  suit  lies  for 
goods  bargained  and  sold,  till  such  selection  is  made.  Upon 
appropriation  of  a  particular  portion  for  the  vendee,  the  proper- 
ty passes,  subject  to  the  vendor's  lieu  for  the  price. (2) 

6.  Whether  the  action  for  goods  bargained  and  sold  will  lie, 
where  the  goods  have  been  re-sold  upon  the  vendee's  refusal  to 
accept  them,  is  a  point  on  which  there  seems  to  be  some  con- 
flict of  authorities.  In  one  case  it  is  said  that  it  will  not,  be- 
cause by  the  re-sale,  the  vendor  loses  his  right  of  requiring  the 
first  vendee  to  take  the  goods.  He  treats  them  as  not  belonging 
to  such  vendee,  and  the  contract  as  not  completed.  Hence,  he 
can  recover  only  in  an  action  for  breach  of  the  contract. (3) 

7.  So,  where  it  is  agreed  between  the  vendor  and  vendee, 
that  if  the  latter  does  not  take  the  goods  within  a  certain  time, 
the  former  may  rescind  the  sale,  and  the  vendee  does  not  take 
them  within  the  period  mentioned,  and  the  vendor  then  re-sells 
the  goods ;  it  seems,  he  cannot  maintain  an  action  as  for  goods 
bargained  and  sold. (4) 

8.  But  where  a  purchaser  of  goods  at  auction  fails  to  take 
them  away,  and  the  vendor  re-sells  them  at  a  loss,  it  has  been 
held,  that  an  action  for  goods  bargained  and  sold  lies,  although 
the  vendor  has  not  the  property  to  deliver,  in  case  of  a  verdict 
in  his  favor.  After  such  verdict,  the  defendant  may  maintain 
trover  for  the  goods.  He  became  a  buyer,  when  they  were 
knocked  down  to  him  at  the  auction. (5) 

9.  The  action  has  been  held  to  lie  upon  a  contract  oi  sale  or 
return. 


(1^  Hankey  v.  Swith,  Peake,  42  n. 

(2)  Per  Bayley,  J.,  Rohde  v.  Thwaltcs,  6  B.  &  C.  392. 

(3)  Acebal  v.  Levy,  4  Moo.  &   Sc.  217.     10   Bing.  384.     Hore  v.  Milner,  Peake, 
42  a. 

(4)  Hagcdorn  v.  Lainy,  6  Tauii.  162. 

(5)  Merieiis  v.  A'!cock,4  Es|).  251. 


324  RV.MEDIES    IN    CASE    OF    SALE,    &C,       [Chap.    XII. 

10.  The  plaintiff  furnished  goods  to  the  defendant  on  a  con- 
tract of  sale  or  return  within  one  year.  The  goods  not  being 
returned  within  the  time  mentioned,  held,  the  plaintiff  might  re- 
cover the  price  in  a  count  for  goods  bargained  and  sold,  and  that 
no  special  declaration  was  necessary,(I)  (See  goads  sold  and 
delivered,  9.) 

11.  This  action  does  not  lie,  without  privity  of  contract  be- 
t«'een  the  plaintiff  and  defendant. 

12.  A  having  a  patent  for  certain  spinning  machinery,  B  or- 
dered from  him  a  number  of  spinning  frames,  to  be  manufactur- 
ed by  A,  and  the  latter  employed  C  to  make  them,  and  informed 
B  accordingly.  The  work  having  been  completed,  A  ordered 
a  certain  alteration,  which  was  made  ;  the  articles  were  packed 
in  boxes  for  B;  and  C  informed  B  that  they  were  ready  for  de- 
livery j  but  B  refused  to  accept  them.  Held,  C  could  not 
maintain  the  action  for  goods  bargained  and  sold,  nor  for  work 
done  and  materials  found,  against  B.(2)* 


Section  IV. — -action  for  money  had  and  received. 

1.  It  is  held  in  Connecticut,  that  assumpsit  for  money  had 
and  received  does  not  lie  to  recover  the  price  paid  by  a  vendee,, 
unless  the  thing  sold  is  of  no  value. (3) 

2.  Where  one  man  sells  the  property  of  others,  with  full  no.-* 

(1)  Harrison  V.  Allen,  9  Moore,  28.     2  Bing.  4. 

(2)  Atliinson  v.  Bell,  8  B.  &  C.  277. 

(3)  Deaa  v.  Mason,  4  Conn.  428. 

*  It  was  rema.rl;ed  by  the  Court,  that  where  you  employ  one  (o  build  a  house  on 
your  land,  or  make  a  chattel  with  your  materials,  the  party  doing  the  work  carunot  ap- 
propriate the  produce  of  the  labor  and  materials  to  any  other  person.  He  may  main- 
tain an  action  against  you  for  the  work.  But  if  you  employ  one  to  work  upon  his  own 
materials,  he  has  the  right  of  applying  the  produce  to  another  person-  During  the 
progress  of  the  work,  he  canr>ot  maintain  an  action  ;  but  when  the  work  is  completed 
and  accepted,  the  party  employed  may  have  an  action  for  goods  sold  and  delivered, 
or,  in  case  of  non-acceptance,  a  special  action  on  the  case.  But  he  cannot  have  an 
action  for  work  and  labor,  bccau'se  it  was  dons  ujion  his  own  materials  and  for  him- 
l^lf^not  for  his  employer. 


Sect.    IV.]       ACTION    FOR    MONEY    HAD    AND    RECEIVED.  325 

tice  that  he  is  doing  wrong,  and  disposing  of  that  to  which  he 
has  no  title,  he  is  liable  to  an  action  for  money  had  and  receiv- 
ed.(l) 

3.  A  loriiously  took  a  quantity  of  coal  from  the  land  of  B, 
sold  it,  received  the  money,  and  afterwards  died.  Held,  B 
might  maintain  an  action  for  money  had  and  received  against 
the  administrator,  though  no  direct  evidence  was  offered  of  the 
sum  that  had  been  received,  if  the  jury  believed  the  fact  of  a 
sale.  The  judgment  was  founded  upon  the  consideration,  that 
the  estate  of  A  was  increased  to  the  amount  of  the  value  of 
the  coal  taken. (2)* 

4.  A  sale  of  goods,  procured  by  fraud,  does  not  change  the 
property  in  them.  Hence,  where  the  defendant  fraudulently  col- 
luded with  A,  an  insolvent,  to  procure  wines  from  the  plaintiff, 
the  proceeds  of  which  finally  came  to  the  defendant's  hands,  for 
a  prior  debt  due  him  from  A;  held,  the  plaintiff  might  maintain 
an  action  for  money  had  and  received  against  the  defendant. 
A  knew  that  the  defendant  would  ultimately  have  the  proceeds 
of  the  wines,  and  stood  as  the  defendant's  agent.  And  it  was 
held  to  make  no  difference  whether  the  property  was  actually 
converted  into  money  or  not. (3) 

5.  A,  having  obtained  possession  of  goods  entrusted  to  B,  to 

(1)  Hardacre  v,  Stewart,  5  Esp.  103. 

(2)  Powell   V.  Ree=,   7  Adol.  &  E!.  426. 

(3)  Abbotts  V.  Barry,  6  Moo.  98. 


*  It  has  been  held  in  Massachusetts,  that  where  trees  are  unlawfully  cut  and  car. 
ried  away,  the  owner  cannot  waive  the  tort  and  sue  as  for  goods  sold  and  delivered, 
unless  the  defendant  has  sold  the  trees.  Jones  v.  Hoar,  5  Pick.  285.  But  where  one 
tenant  in  common  sells  trees  from  the  land,  the  other  may  have  an  action  "^or  money 
had  and  received,  v/hether  payment  was  made  in  land,  by  note,  or  otherwise.  Miller 
V,  Miller,  7.  133.  So  where  A  without  authority  sells  the  goods  of  B,  taking  a  ne- 
gotiable note  for  the  price  ;  B  may  have  this  action  against  him,  Whitwell  v.  Vin. 
cent  4.  449.  One  disseised  cannot,  during  the  disseisin,  maintain  assumpsit  hr  \.he 
proceeds  of  trees  cut  upon  the  land  and  sold.  Bigelow  v.  Jone?,  10. 161.  Where  one 
wrongfully  takes  the  chattel  of  another,  manufactures  it  into  a  new  form,  sells  and 
receives  the  price  for  it  ;  he  is  liable  to  the  owner  as  for  money  had  and  received, 
Gilmore  v.  Wilbur,  12  Pick.  120.  In  New  Hampshire,  it  has  been  held,  that  where 
one  took  the  goods  of  another,  and  converted  them  to  his  own  use,  without  the  owner's 
license  ;  upon  an  agreed  statement  of  facts,  the  tort  might  be  wa  ived,  and  assumpsit 
pupported  for  the  price,  though  it  was  agreed  there  was  no  contract.  Hill  v,  D'jvi-, 
5  N.  H.  384. 


326  REMEDIES    IN    CASE    OF    SALE,  &C.        [Chap.    XII. 

be  sold  at  a  certain  price,  refused  to  re-deliver  them  or  pay  the 
price  at  the  time  appointed.  B,  under  threat  of  a  suit  by  the 
owner,  paid  him  for  the  goods.  Held,  B  might  recover  against 
A  in  an  action  for  money  had  and  received,  a  sale  of  the  goods 
by  A  being  presumed. (1) 

6.  Where  two  persons  make  a  valid  agreement  to  join  in 
the  purchase  of  goods  for  the  purpose  of  selling  them  again  ;  if 
one  of  them  take  and  appropriate  to  himself  the  whole  of  the 
property ;  the  other  may  bring  an  action  for  money  had  and  re- 
ceived for  his  share  of  the  profits.  (2)* 


Section  V. — forms    op    declaring,  in    actions    upon    the 
CONTRACT  of  SALE.     {See  Sect.  I.) 

1.  In  an  action  for  non-delivery  of  goods  sold,  the  declara- 
tion need  set  forth  only  that  part  of  the  contract,  a  breach  of 
which  is  complained  of.(3)t 

(1)  Longcliamp  V.  Kenny,  5  Moore,  104. 
{2)  Stiles  V.  Campbell,   11  Mass.  321. 
(3)   Squier  v.  Hunt,  3  Price,  68. 

*  The  follswing  miaceflaneous  cases  may  be  ■  iled,  in  which  money  had  and  re- 
ceivedWxW  lie  after  a  sale  of  goods.  A  buys  goods  of  B,  the  agent  of  C,  but  not  having 
authority  to  sell.  B  applies  the  proceeds  to  C's  benafit,  but  C  afterwards  disaffirms 
the  sale  and  recovers  the  goods.  A  may  maintain  an  action  against  C  for  the  money 
paid  B.  Peters  v.  Ballistier,  3  Pick.  495.  Where  a  vendee  gives  his  negotiable  note 
for  the  price,  and  either  the  goods  are  overcharged  or  the  note  given  for  too  large  a 
sum  ;  he  may  recover  the  excess  before  paying  the  note,  or  even  though  he  paid  it 
after  discovering  the  error.  Whitcomb  v.  Williams,  4  Pick.  228.  Where  an  agent, 
not  authorized  to  sell  on  credit,  takes  a  note  payable  to  himself,  or  unreasonably  de- 
lays collecting  such  note,  the  principal  may  maintain  an  action  for  money  had,  dec. 
Hemenway  V.  Hemenway,  5  Pick.   389.     See  7.  214. 

■f  In  Massachusetts,  upon  the  ground  of  immemorial  usage,  (and  probably  other 
states,)  indeb.  assurnp.  lies  for  goods  sold  and  delivered,  as  described  in  a  schedule 
annexed  to  the  writ.  Nor  need  the  writ  state  even  generally,  what  (he  schedule 
contains.  2  Mass.  398.  13.  284.  In  the  same  state  it  is  held,  that  where  a  suit  is 
brought  upon  a  special  contract,  still  remaining  executory,  the  declaration  should  state 
the  whole  contract.  But  it  is  otherwise,  where  the  terms  of  a  special  agreement  have 
been  performed,  and  nothing  remains  to  be  done  but  the  payment  of  money.     Felton 


Sect,  v.]         FORMS  OF  DECLARING,  &C.  827 

2.  In  an  action  on  the  case  against  a  vendor,  for  falsely  af- 
firming that  the  property  sold  belonged  to  him,  whereby  the 
plaintiff  was  induced  to  buy  it,  and  afterwards  evicted  by  the 
rightful  owner  ;  the  declaration  need  not  allege  either  a  con- 
tract, consideration  or  price.  In  such  case,  a  recovery  by  the 
true  owner  is  conclusive  against  the  present  defendant;  and,  if 
the  declaration  alleges,  that  the  vendor  testified,  in  the  former 
suit  between  the  true  owner  and  the  vendee,  that  he  did  not 
own  the  property  ;  this  is  equivalent  to  an  averment  of  notice 
to  the  vendor  of  the  pendency  of  the  former  suit.(l) 

3.  Where  the  declaration  contains  one  count  upon  a  special 
agreement,  and  another  inindeb,  assump.,  if  the  evidence  sustains 
the  latter,  the  plaintiff  will  recover,  though  he  unsuccessfully 
attempt  to  sustain  the  former.  (2) 

4.  The  law  in  many  cases  requires,  that  the  plaintiff,  suing 
upon  a  contract  of  sale,  should  allege  the  performance  of  some 
act  or  condition  on  his  own  part.  , 

5.  Agreement,  that  A  should  furnish  B  a  certain  quantity  of 
goods,  for  which  B  was  to  pay  $200  at  a  future  time.  A  brings 
an  action  for  the  price,  alleging  delivery  of  the  kinds  of  articles 
agreed  for  to  the  amount  of  $200,  which  B  had  received  in  full 
satisfaction  of  the  agreement,  but  not  the  particular  quantity 
delivered.  Held,  this  was  a  sufficient  averment  of  performance 
of  the  condition  precedent,  or  of  what  was  equivalent  to  per- 
formance, by  way  of  accord  and  satisfaction. (3) 

6.  Action  for  non-delivery  of  goods  according  to  agreement, 
after  a  demand.  The  declaration  alleged,  that  the  plaintiff  was 
ready  and  willing  to  accept  and  pay  for  the  goods.  Held,  this 
allegation  need  not  be  specifically  proved,  the  demand  being 
sufficient  evidence  of  it. (4) 

(1)  Barney  v.  Dewey,  13  John.  224. 

(2)  Keyes  v.  Stone,  5  Mass.  391. 

(3)  Richards  V.  Carl,  1  Blac.  313. 

(4)  Wilks  V.  Atkinson,  1  Marsh.  412. 

V.  Dickinson,  10  Mass.  287.  In  Kentucky,  the  declaration  may  be  general  for  goods, 
&c.  sold  and  delivered,  without  specifying  the  particular  description.  Snodgrass  v. 
Broadwell,  2  Lilt.  355.  The  price  of  lottery  tickets,  if  the  sale  be  not  illegal,  may  be 
recovered  in  a  count  for  goods,  wares  and  merchandize  sold  and  delivered.  Yohe  v. 
Robertson,  2  Whart.  155. 


328  REMEDIES     IN    CASE    OF    SALE,    &,C.        [Chap.    XII. 

7.  The  defendant  agreed  to  deliver  to  the  plaintiff"  a  quantity 
of  malt  at  a  certain  price.  In  a  suit  for  non-delivery,  held,  the 
plaintiff  need  not  allege  a  tender  of  the  price,  but  only  a  request 
to  deliver,  and  that  he  was  ready  and  willing  to  receive  and 
pay  for  the  malt  according  to  agreement,  but  the  defendant  re- 
fused to  deliver.  More  especially  is  this  sufficient  after  ver- 
dict.(1) 

8.  Declaration,  that  in  consideration  the  plaintiff  had  paid  the 
defendant  a  certain  sum,  he  agreed  to  deliver  the  plaintiff,  at  R 
sixty  quarters  of  wheat  in  certain  proportions,  and  for  a  certain 
price,  to  be  paid  immediately  after  delivery  ;  but  the  defendant, 
though  often  requested  to  deliver  it,  and  though  the  plaintiff  at 
the  said  several  times  when  the  wheat  should  have  been  deliver- 
ed, was  ready  at  R  to  receive  it,  and  pay  the  defendant  the 
sums  which  he  ought  to  pay,  immediately  after  receipt  of  it ; 
yet  the  defendant  had  not  delivered  the  wheat.     Held  good. (2) 

9.  In  an  action  by  A  against  B,  the  declaration  alleged,  thatB 
was  possessed  of  certain  land  on  which  hops  were  growing,  and 
agreed  to  sell  to  A  all  the  hops  then  growing,  at  ,£10  per  hun- 
dred weight,  to  be  paid  by  A  to  B  ;  the  hops  to  be  delivered  in 
packets  by  B  to  A  at  W  in  R  ;  that  in  consideration  of  A's  un- 
dertaking to  accept  and  pay  for  the  hops,  B  promised  to  deliver 
them  at  said  place  and  in  said  manner,  in  a  reasonable  time  af- 
ter they  were  picked  and  gathered ;  that  hops  had  been  picked 
and  gathered,  amounting  to  two  hundred  weight,  and  though  a 
reasonable  time  for  delivery  had  elapsed,  and  though  during  and 
since  that  time  A  was  ready  and  willing  to  accept  and  pay  for 
them  at  the  rates  and  in  the  manner,  &c. ;  yet  B  had  not  de- 
livered them.  But  the  declaration  alleged  no  request  or  notice 
to  deliver  at  any  particular  time,  and  no  tender  of  the  price. 
Held,  as  the  first  act  was  to  be  done  by  the  defendant,  no  such 
allegation  was  necessary,  and  the  declaration  was  good.  (3) 

10.  Action  for  non-delivery  of  a  quantity  of  corn,  which 
the  defendant,  in  consideration  of  the  plaintiff's  purchasing  it 
of  him  at  a  fixed  price :  undertook  to  deliver   at  S  within  one 

(1)  Rawson  V.Johnson,  1  E.  203. 

(2)  Norwood  V.  Norwood,  Plowd.  180. 
(S)  Bristow  T,  Waddingion,  '2  N.  R.  356. 


Sect,  v.]         FORMS  OF  DECLARING,  &C,  320 

month  from  the  time  of  sale.  Held,  the  declaration  must  al- 
lege a  tender  of  the  price  or  some  act  equivalent  thereto.  The 
delivery  and  payment  were  to  be  concurrent  acts.  It  was  re- 
marked by  the  court,  that  the  case  did  not  depend  on  technical 
niceties  of  pleading,  but  on  the  true  construction  of  the  agree- 
ment.(l) 

11.  Declaration,  in  consideration  that  the  plaintiff  had  sold 
a  certain  horse  to  the  defendant,  at  and  for  a  certain  quantity  of 
certain  oil,  to  be  delivered  within  a  certain  time,  which  had  elaps- 
ed before  commencement  of  suit,  the  defendant  promised  to  de- 
liver said  oil  accordingly.  The  value  of  the  horse  was  not  stat- 
ed, nor  the  value,  quantity  or  quality  of  the  oil.  Held  good,  af- 
ter verdict.  Ld.  Eldon  was  at  first  of  a  contrary  opinion,  but 
at  length  concurred  with  the  other  judges.(2) 

12.  Declaration  in  case,  that  whereas  the  plaintiff  had  agreed 
to  buy,  and  the  defendant  to  sell  and  deliver,  at  a  certain  rate  or 
price  per  pound,  to  be  paid  in  the  manner  then  stipulated,  forty 
bags  of  wool,  to  be  delivered  by  the  defendant  to  the  plaintiff 
at  a  time  which,  before  the  making  of  the  defendant's  promise, 
after-mentioned,  had  elapsed,  but  which  wool  had  not  then  been 
delivered  ;  and  thereupon,  in  consideration  of  the  premises,  and 
that  the  plaintiff  would  still  receive  and  pay  for  the  wool  at  the 
rate  or  price,  and  in  the  manner,  last  aforesaid,  upon  delivery 
within  reasonable  lime,  the  defendant  promised  the  plaintiff  to 
deliver  the  wool  within  a  reasonable  time.  And  though  the 
plaintiff,  for  a  reasonable  time  after  the  defendant's  promise,  was 
ready  and  willing  to  receive  and  pay  for  the  wool  at  the  rate  or 
price  and  in  the  manner  last  aforesaid,  the  defendant  would  not 
deliver  it,  &c.  Held  this  declaration  was  too  general,  and  bad 
on  special  demurrer  ;  as  it  mentioned  no  price  and  manner  of 
payment  in  the  first  bargain,  which  nevertheless  were  referred 
to,  incorporated  with,  and  made  part  of  the  consideration  of  the 
new  promise,  upon  which  this  action  was  founded.  Hence  no- 
thing was  presented  to  the  jury,  which  could  serve  as  the  mea- 
sure of  damages  for  non-delivery. (3) 

(1)  Morton  v.  Lamb,  7  T.  R.  125. 

(2)  Ward  V.  Harris,  2  B.  &  P.  265. 
<3)  Andrews  v.  Whitehead,  13  E.  102. 

42 


330  REMEDIES    IN    CASE    OF    SALE,    &C.        [Chap.    XII. 


Section    VI. — variance  between    averments    and  proofs. 

1.  Nice  questions  often  occur,  wliether  the  declaration  upon 
a  contract  of  sale  is  supported  by  the  evidence,  or  whether  there 
is  a  variance  between  the  allegations  and  the  proofs. 

2.  In  an  action  for  goods  sold  and  delivered,  the  declaration 
alleged  that  the  goods  were  the  property  of  the  plaintiff;  but 
the  evidence  proved  that  they  belonged  to  him  and  another. 
Held  a  variance. (1) 

3.  The  plaintiff,  in  his  declaration,  alleged  a  promise  by  the 
defendant,  made  in  consideration  that  the  plaintiff  would  deliver 
certain  goods  to  a  third  person.  The  evidence  proved  that  the 
plaintiff  was  to  deliver  them  to  the  defendant  himself.  Held  a 
variance. (2) 

4.  Declaration,  that  the  defendant  agreed  to  deliver  goods  for 
the  plaintiff  A  special  agreement  was  proved,  to  deliver  them 
to  the  bearer  of  a  receipt  given  for  them  at  delivery.  Held,  the 
evidence  disproved  the  declaration. (3) 

5.  In  assumpsit,  the  declaration  set  forth  a  written  agreement 
between  the  plaintiff  and  defendant,  by  which  the  latter  was  to 
sell  and  deliver  to  the  former  all  the  wool  that  he  (the  defend- 
ant), should  cut,  annually,  for  five  years,  from  his  sheep,  and 
also  vehat  should  be  cut  from  those  of  his  two  sons.  The  plain- 
tiff offered  in  evidence  a  written  contract,  signed  by  the  plain- 
tiff, the  defendant  and  his  sons  ;  by  which  the  defendant  con- 
tracted as  above  alleged,  and  the  sons  agreed  to  improve  their 
flocks  in  a  certain  manner,  to  retain  the  increase,  and  that  the 
plaintiff  should  have  the  fleeces  of  such  increase.  The  plaintiff 
to  pay  the  defendant  so  much  per  pound.  Held,  there  was  no 
variance,  because  the  agreement  was  the  sole  contract  of  the 
defendant ;  or,  if  the  sons  were  parties,  the  promise  declared  on 
was  that  of  the  defendant  alone. (4)* 

(1)  Dilchburn  v.  Spracklin,  5  Esp.  31. 

(2)  Leery  v.  Goodson,  4  T.  R.  687. 

(3)  Samuel  v.  Darch,  2  Stark.  60. 

(4)  Stoarns  v.  Foote,  20  Pick.  432. 

*  It  being  proved,  that  one  of  the  sons  owned  in  common  with  one  A,  who  howev- 


Sect.    VI. J       VARIANCE    BETWEEN    AVERMENTS,    &C.  331 

G.  Contract  to  deliver  rough  gum  Senegal.  Declaration,  as 
on  a  contract  to  deliver  gum  Senegal,  generally.  Proof,  that  all 
gum  Senegal,  on  arriving  in  England,  is  rough.  Held,  the  dec- 
laration was  sustained.(l) 

7.  Agreement,  to  take  in  a  certain  specified  quantity  of  goods. 
The  declaration  alleged  an  agreement  to  take  in  a  full  cargo. 
Held,  a  variance,  though  the  quantity  named  was  a  full  cargo.(2) 

8.  Agreement,  to  purchase  a  parcel  of  hemp,  about  eight 
tons.  Declaration,  an  agreement  to  purchase  a  parcel  of  hemp, 
to  icit,  eight  tons  ;  this  being  the  exact  quantity  in  the  parcel 
sold.  Held  sufficient,  though  it  might  have  been  better  to  state 
the  facts  precisely  as  they  were. (3) 

9.  Agreement,  to  purchase  all  the  head  matter  and  sperm  oil, 
per  the  Wildman.  Declaration,  that  the  plaintiff  bargained  and 
sold,  and  the  defendant  agreed  to  buy,  a  large  quantity  of  head 
matter  and  sperm  oil  at  a  certain  price  per  ton,  which  was  af- 
terwards ascertained  to  be  a  given  quantity.  Held  to  be  no  va- 
riance. The  plaintiff  had  proved  all  his  declaration,  and  some- 
thing more.  There  was  no  proof  of  any  qualification  or  condi- 
tion to  the  bargain.  Objection  could  be  tak^n,  if  at  all,  only 
by  demurrer  or  in  arrest  of  judgment.  (4) 

10.  The  plaintiff  declared,  that  in  consideration  that  he  had 
sold  to  the  defendant  276  hides  of  leather,  and  agreed  to  deliver 
them,  the  defendant  agreed  to  accept  and  pay  for  them,  the 
weight  to  be  determined  by  inspection.  It  was  proved,  that  the 
defendant  agreed  to  buy  a  lot  of  leather  then  in  the  vats,  and 
to  take  what  should  be  stamped  good  by  the  inspector.  Held, 
a  fatal  variance.(5) 

11.  Sale  of  manufactured  goods,  with  a  warranty  that  they 
were  equal  to  any  manufactured  in   America.     Declaration,  as 

(1)  Silver  v.  Heseltine,  1  Chit.  39. 

(2)  Harrison  v.  Wilson,  2  E;p.  708. 

(3)  Gladstone  V.   Neale,  13  E.  410. 

(4)  Wildman  v.  Glossop,  1  B.  &  A.  9. 

(5)  Hart  v.  Tyler,  15  Pich.  171. 

er  let  his  share  to  such  son,  so  that  the  whole  of  the  wool  sheared  was  .'sheared  by  and 
belonged  to  the  son  ;  hold,  the  defendant's  contract  included  the  whole  of  the  wool. 
An  agreement  that  a  third  person  siiall  convey  certain  property  is  binding,  although 
the  party  may  be  unable  to  fulfil  it.    lb. 


333  KEIMEUIES    IN    CASE    OF    SALE,    &,C,       [Chap.    XII. 

upon  a  warranty  that  they  were  good  and  merchantable.     Held 
a  variance. (1) 

12.  Sale  of  spruce  timber.  Declaration,  as  upon  a  sale  of 
pine  timber.     Held  a  variance.  (2) 

13.  Agreement  for  three  hundred  and  eight  chests  and 
thirty  half  chests  of  China  oranges,  and  twenty  chests  of  lemons 
— no  price  being  specified.  The  plaintiff  alleged  in  his  decla- 
ration, that  he  had  agreed  to  sell,  and  the  defendant  to  buy,  cer- 
tain goods  and  merchandize,  to  wit,  three  hundred  and  twenty- 
eight  chests  and  thirty  half  chests  of  oranges  and  lemons,  at  and 
for  a  certain  price,  to  wit,  =£'623,  3s.     Held,  no  variance. (3) 

14.  A  agreed  to  furnish  B  with  saddles  at  "  24s.  26s."  B 
brings  an  action  upon  this  agreement,  declaring  upon  it  as  a 
contract  to  furnish  saddles  at  a  reasonable  price.  Held,  this 
was  no  variance.  The  legal  construction  of  the  agreement  was 
to  sell  at  a  price  near  about  the  sums  named. (4) 

15.  The  declaration  alleged,  that  the  goods  were  to  be  paid 
for  by  a  bill  at  two  months  ;  but  the  evidence  was,  that  they  were 
to  be  paid  for  by  a  bill  at  two  months,  on  receiving  the  invoice 
or  delivery  of  the  property.  Held,  this  was  not  a  fatal  variance. 
In  this  case,  a  special  assumpsit  was  held  the  proper  form  of  ac- 
tion.(5) 

16.  A  declaration,  alleging  that  the  plaintiff  was  ready  and 
willing  to  perform  his  part  of  the  agreement  between  him  and 
the  defendant,  is  sustained  by  proving  a  demand  made  by  his* 
servant  in  his  absence.  (6) 

17.  A  contract  in  the  alternative  must  be  so  stated  in  the 
declaration  ;  otherwise,  the  case  shows  a  variance ;  although 
facts  occurring  subsequently  to  the  contract  have  rendered  it 
absolute. 

18.  Agreement  to  purchase  one  hundred  bags  of  wheat ;  for- 
ty or  fifty  of  them  to  be  delivered  on  one  market-day,  the  re- 
mainder on  the  market-day   next   following.     Forty  bags  were 

(1)  Goulding  V.  Skinner,  1  Pick.  162. 

(2)  Robbins  v.  Otis,  1  Pick.  368. 

(3)  Crispin  v.  Williamson,  1  Moore,  647. 

(4)  Laing  v.  Fidgcon,  6  Taun.  108. 
(6)  Squier  v.  Hunt,  3  Price,  68. 

(6)  lb. 


Sect.    VI.]       VARIANCE    BETWEEN    AVERMENTS,    &.C.  333 

delivered  on  the  first  market-day.  In  an  action  for  non-deliv- 
ery of  the  rest,  held,  the  declaration  must  allege  the  agreement, 
as  above-stated,  in  the  alternative — -forty  or  fifty — not  forty 
alone. (1) 

19.  Contract,  to  deliver  certain  goods,  within  fourteen  days, 
or  on  arrival  of  a  certain  ship.  The  ship  arrived  after  the 
time  mentioned.  In  an  action  for  non-delivery,  one  count  in 
the  declaration  alleged  a  promise  to  deliver  within  fourteen 
days,  and  another  on  the  arrival  of  the  ship  ;  but  there  was  no 
allegation  in  the  alternative.     Held  insufficient. (2) 

20.  A  contract  for  the  sale  of  tallow  warranted  it  to  be  ready 
for  delivery,  before  a  certain  day,  from  the  ship  or  warehouse. 
The  declaration  alleged,  that  it  was  to  be  ready  for  delivery, 
generally,  before  the  day  mentioned.  Held,  there  was  no  vari- 
ance. The  option  as  to  the  place  of  delivery  was  given  to  the 
vendor,  not  to  the  vendee.  If  a  contract  enumerate  all  possible 
places  of  delivery,  and  at  the  same  time  give  the  vendor  his  op- 
tion among  them,  the  legal  construction  is  the  same,  as  if  such 
option  were  given  generally.  The  contract  in  this  case  was,  to 
deliver  from  one  or  the  other  of  the  only  places  where  the  goods 
could  possibly  be. (3) 

21.  Agreement,  to  deliver  soil.  The  declaration  alleged  an 
agreement  to  deliver  soil  or  breeze.  Held,  a  fatal  variance,  aa 
soil  and  breeze  are  distinct  articles. (4) 

22.  Agreement  by  the  defendant  to  deliver  the  plaintiff  all  his 
tallow  at  four  shillings  per  stone,  and  so  much  more  as  the  plain- 
tiff had  to  pay  to  any  other  person.  The  declaration  alleged 
that  the  defendant  promised  to  deliver  it  absolutely,  at  four  shil- 
lings per  stone.  Held,  this  was  a  fatal  variance.  The  contract 
was  not  an  alternative  one,  in  which  the  party  has  his  option  to 
do  one  thing  or  another  ;  but  it  was  a  contract  to  pay  a  larger 
or  smaller  sum,  according  to  the  happening  or  not  happening  of 
a  future,  contingent  event. (5) 

(1)  Penny  v.  Porter, 2  E.  2.     (See  Lent  v.  Padclfurd,  10  Mass.  230.) 

(2)  Shipham  v.  Saunders, 2  E.  4  n. 

(3)  Thornton  v.  Jones,  6  Taun.  581. 

(4)  Clark  v.  Manstone,  5  Esp.  239.     1  Chit.  60  a. 

(5)  Churchill  v.  VVilkins,  1  T.  R.  447. 


331 


REMEDIES    IN    CASE    OF    SALE,    &C.       [Chap.    XII. 


Section  VII. — defences. 

1.  It  is  a  general  rule,  that  in  an  action  for  the  price  of  a 
chattel,  the  vendee  may  prove  in  defence  deceit  on  the  part  of 
the  plaintiff,  and  that  the  article  is  of  no  value;  or  he  may 
show  a  partial  unsoundness  in  mitigation  of  damages.  As 
where  the  plaintiff  sold  a  mare  to  the  defendant,  and  represent- 
ed her  to  be  sound,  and  she  proved  to  be  sick.(l)* 

2.  So  where  a  vendee  gives  his  note  for  the  price  of  the 
thing  sold,  upon  which  the  vendor  brings  an  action,  the  former 
may  prove  deceit  in  the  sale  as  a  defence.  Fraudulent  repre- 
sentation renders  the  note  void.  As  where  a  shearing-machine 
was  sold  and  represented  to  be  of  great  value,  but  proved  to  be 
entirely  useless. (2) 

3.  Plaintiff  sold  to  the  defendant  a  quantity  of  Leghorn  hats, 
of  certain  specified  qualities  and  for  a  certain  price,  and  agreed 
to  deliver  extra  crowns  to  match  the  hats  which  were  delivered, 
free  of  charge.  The  crowns  which  were  sent  did  not  thus 
match,  of  which  the  vendee  gave  immediate  notice,  and  in  con- 
sequence of  which  he  suffered  a  loss.  In  a  suit  for  the  price, 
held,  this  was  not  a  case  of  rescinding   the  contract,  but   the 

{1)  Beecker  v.  Vrooman,  13  John.  302. 
(2)  Sill  V.  Rood,  15  John.  230. 


*  It  was  fiu-nierly  held,  in  Massachusetts,  that  a  vendee  of  manufactured  goods 
who  has  accepted  them  -without  objection,  cannot  defend  against  a  suit  for  the  price 
on  the  ground  of  b  id  workmanship.  (Everett  v.  Gray,  1  Mass.  101.)  This  decisiopi 
however,  has  been  questioned  in  a  later  case,  and  seems  to  bo  inconsistent  with  the 
general  current  of  authorities.  See  Fisher  v.  Sumada,  1  Camp.  190.  Lewis  v.  Cos- 
grave,  2  Taun.  2.  Jones  v.  Scriven,  8  John.  453.  Grant  v.  Button,  14.  377.  Beeck- 
er V.  Vrooman,  13  John.  302.  Payne  v.  Cutler,  13  Wend.  605.  Miller  v.  Smith,  1 
Mass.  437.  In  Kentucky,  if  the  thing  is  received  and  used,  and  of  any  value,  the  bad 
quality  is  no  defence.  Allison  v.  Noble,  1  Litt.  279.  In  New  York,  if  a  note  were 
given,  cyan  fraud  is  no  defence,  unless  (he  vendee,  on  discovering  it,  re'.urns  the  thing, 
or  it  is  of  no  value.  3  Wend.  236.  If  the  vendee  gave  notice  to  the  vendor,  he  may 
offer  proof  to  reduce  the  damages,  whether  there  were  warranty  or  fraud.  13  Wend. 
605.  10.  512  4.  483.  8.  109. 


Sect.  VII.]  DEFENCES.  335 

vendee  might  reduce  the  damages,  by  showing  these  facts,  in 
proportion  as  the  articles  were  of  less  value  to  him  than  they 
would  otherwise  have  been.(l) 

4.  An  omission  to  return  articles  sold  does  not  preclude  a 
dispute  as  to  the  price,  except  in  case  of  conditional  sales, 
where  the  property  is  taken  on  trial,  with  the  liberty  of  return- 
ing it,  if  the  party  is  dissatisfied,  within  a  limited  time. (2) 

5.  Where  a  vendee  gives  a  bond  for  the  consideration  of  the 
sale,  upon  which  the  vendor  brings  an  action,  the  defendant 
cannot  plead  in  discharge  a  false  representation  or  warranty. 
As  where  a  slave  was  represented  to  be  lionest,  sober,  6lc.  A 
specialty  can  be  invalidated  only  for  illegality  of  consideration, 
which  avoids  ab  initio.  Even  a  breach  of  written  warranty 
would  be  no  discharge ;  and  still  less  parol  representations,  al- 
though false  and  fraudulent  and  constituting  the  inducement  to 
purchase.  Whether  the  vendee,  in  order  to  avail  himself  of 
these  facts,  must  resort  to  a  Court  of  Equity,  or  may  sue  at 
law,  qu.(3) 

6.  A  vendee  gave  his  note  for  the  price  of  the  goods,  secured 
by  a  pledge  of  them.  Upon  non-payment  of  the  note,  the  ven- 
dor re-sold  the  goods  at  a  loss,  and  then  brought  an  action  for 
the  balance  due  upon  the  note.  Held,  it  was  no  defence  to  this 
action,  that  the  loss  in  the  sale  was  caused  by  the  plaintiff's 
misconduct,  but  for  this  the  vendee  must  resort  to  an  action  on 
the  case.  The  pledgee  stood  as  a.  factor  of  the  defendant,  and 
was  bound  to  exercise  skill,  diligence  and  fairness,  and  account- 
able for  the  want  of  those  qualities.  But  the  judgment  in  this 
action  would  be  no  bar  to  another  suit.  (4) 

7.  In  England,  in  an  action  for  goods  sold  and  delivered,  if 
the  defendant  plead  the  general  issue,  under  the  new  rules  of 
pleading  he  may  prove  that  the  goods  vary  from  the  contract, 
though  there  was  a  special  agreement  to  pay  a  certain  price. 
In  such  case,  the  plaintiff  will  recover  only  a  quantum  valebant. 
If  the  declaration  had  set  out  a  special  contract,  under  the  general 

(1)  King  V.  Paddock,  18  John.  141. 

(2)  King  V.  Paddock,  18  John.  143,  4. 

(3)  Vrooman  v.  Phelps,  2  John.  C.  177. 
(4)  Jones  v.  Kennedy,  11  Pick.  125 


336  REMEDIES    IN    CASE    OF    SALE,    &C.       [Chap.    XII. 

issue  the  defendant  could  only  have  denied  the  contract  ni/oc/. 
But  he  may  deny  a  part  of  the  implied  contract  alleged  in  the 
declaration ;  viz.  that  the  same  goods  which  had  been  contract- 
ed for  were  actually  delivered.(l)     (See   Warranty.) 

8.  In  an  action  for  goods  sold  and  delivered,  the  defendant 
may  prove,  in  defence,  that  they  were  delivered  in  payment  for 
his  services,  rendered  the  plaintiff.  He  need  not  file  an  account 
in  off"-set.(2) 

9.  Assumpsit  for  the  price  of  a  pew  sold  at  auction.  Held, 
the  plaintiff  should  recover,  without  proving  a  title  to  the  pew.(3) 
So  the  defendant,  in  this  action,  cannot  set  up  as  a  defence, 
that  the  goods  sold  belonged  to  a  stranger. (4) 


Section  VIII. — amount  of  damages. 

1.  In  an  action  for  goods  sold  and  delivered,  it  was  proved 
that  the  defendant  said  he  owed  the  debt,  that  the  plaintiff  had 
demanded  payment,  and  he  should  pay  it  as  soon  as  he  was 
able  ;  but  mentioned  no  sum.  Held,  the  plaintiff  was  entitled 
to  a  verdict  for  nominal  damages.(5) 

2.  In  an  action  by  a  vendee  against  the  vendor  for  non-deliv- 
ery of  the  thing  sold ;  the  measure  of  damages  is  not  the 
agreed  price,  but  the  value  at  the  time  of  breach,  not  after- 
wards. And  this  is  the  measure,  although  the  vendor  withhold 
the  property  with  a  view  to  his  own  profit.  But  if  there  is  no 
fixed  price,  but  the  price  ranges  between  different  rates ;  the 
jury  may  adopt  the  highest,  lowest  or  an  intermediate  rate,  ac- 
cording to  the  conduct  of  the  defendant. (6)* 

(1)  Cousins  V.   Paddon,  2  Cromp.  Mees.  &  R.  547.     (But  see  Roftey  v.  Smilh,  6 
C.  &  P.  662. 

(2)  Wilbey  v.  Han  is,  13  Mass.  496. 

(3)  Stoddert  v.  Vestry,  2  Gill.  &  J.  227. 

(4)  Wright  V.  Sharp,  1  Browne,  344. 

(5)  Dixon  V.  Deveridge,  2  C.  &  P.  109. 

(6)  Hopkins  v.  Lee,  6  Wheat.  109      Sheperd  v.  Hampton,  3  Wheat.  200.     Bly- 
denburgh  v.  Welsh,  1  Bald.  331. 


♦  In  case  of  sale  without  specifying  the  price,  the  seller  can  recover  only  the  value 


Sect.    VIII.]  AMOUNT    OF    DAMAGES.  337 

3.  Where  there  is  an  agreement  to  deliver  goods  at  a  certain 
time  and  place,  and  a  breach  thereof;  the  measure  of  damages 
is  the  difference  between  the  price  agreed  on,  and  the  market 
value  at  the  specified  time  and  place.  If  clear  evidence  of  such 
value  is  offered,  evidence  is  not  admissible  of  the  value  at  other 
neighboring  places.  But  in  the  absence  of  the  former  evidence, 
the  latter  is  admissible,  as  raising  a  presumption  in  relation  to 
the  point  at  issue.  (1) 

4.  In  the  month  of  September,  the  defendant  agreed  to  deliv- 
er tallow  to  the  plaintiff  in  all  the  ensuing  December,  at  so 
much  per  hundred  weight.  In  October,  the  defendant  told  the 
plaintiff  he  had  sold  the  tallow,  and  could  not  perform  his 
agreement ;  but  the  plaintiff  did  not  consent  to  rescind  the  bar- 
gain. After  the  making  of  the  agreement,  tallow  rose  in  price. 
Held,  the  plaintiff  should  recover  as  damages  the  difference  be- 
tween the  agreed  and  the  market  rate  on  December  31,  the  last 
day  on  which  the  contract  would  authorize  the  defendant  to  de- 
liver the  tallow.  Had  the  article  fallen  in  price,  the  plaintiff 
would  still  have  been  bound  to  take  it  at  the  agreed  rate.  He 
was  not  bound  to  purchase  other  tallow  at  a  lower  price,  though 
he  might  have  done  it.  The  defendant  might  have  purchased 
for  a  lower  price,  as  well  as  the  plaintiff. (2) 

5.  Where  goods  are  sold  and  delivered  upon  a  credit,  and 
the  vendee  has  violated  the  contract  only  in  one  particular,  the 
damages  will  be  commensurate  only  with  the  actual  breach. 
But  where  the  contract  is  wholly  rejected,  the  damages  are  not 
the  price  of  the  thing  sold,  but  a  compensation  for  the  disaffirm- 
ance ;  and  the  difference  of  price  upon  re-sale  is  merely  the 
measure  of  damages  actually  sustained. (3) 

(1)  Gregory  v.  M'Dowell,  8  Wer.d.  435.     Gainsfoid  v.  Canoll,  2  B.  &  C.  624. 

(2)  Leigh  v.  Patterson,  2  Moore,  588. 

(3)  Girard  v.Taggart,  5  S.  «fc  R.  34.     Per  Gibson,  Ch.  J. 


at  the  time  of  sale ;  though  the  value  may  have  subsequently  increased.  Kill  v.  Hill, 
Coxe,  261.  So  it  has  been  held,  that  in  an  action  for  breach  of  contract  to  make  pay- 
ment in  tobacco,  the  plaintiff  shall  recover  the  value  of  the  tobacco  on  the  day  ap- 
pointed for  payment.     Lyle  v,  Lyle,  6  Har.  &  J.  273. 

43 


CHAPTER  XIII. 


SALE  OR  ASSIGNMENT  OF  CHOSES  IN  ACTION. 

Section  I. — what  may  be  assigned. 

1.  General  principles.      What  assignable. 

4,  Policy  of  insurance. 

5.  Shares  in  corporations. 
9.  Judgment  and  execution. 

16.  Miscellaneous  cases. 

Section    II. — form  op  assignment  ;    whether  in  writing, 
BY  delivery,  &c. 

Section  III. — effect  of  an  assignment  upon    the  rights 
OF  the  parties — notice,  off-set,  &c. 

•  1.  Notice  to  the  debtor,  form  and  effect  of. 
9.  Debtor's  right  of  set-off^. 

Section    IV. — remedies  in  case  of  assignment — suits  at 

LAW  AND  in  equity DEFENCES,  &yC. 


Section  I. — what  may   be  assigned. 
I.  The  law  relating  to  sales  of  personal  property  contemplates 


Sect.    I,j  WHAT    MAY    BE    ASSIGNED.  339 

for  the  most  part  personal  property  in  possession ;  that  is,  the 
property  commonly  known  as  chattels,  which  have  an  absolute, 
and  present,  and  not  a  mere  representative  or  future  value.  The 
other  division  of  personal  property  consists  of  clioses  in  action, 
which  are  mere  securities,  promises  or  debts.  The  most  com- 
mon and  important  kind  of  securities,  that  is,  negotiable  paper, 
or  hills  and  notes,  and,  in  some  of  the  United  States,  bonds,  is 
the  subject  of  a  distinct  branch  of  commercial  law,  and  does 
not  fall  within  the  plan  of  the  present  work.  But  it  seems  not 
inappropriate,  to  consider  briefly  the  sale  or  assigiiment,  as  it  is 
usually  termed,  of  clioses  in  action  not  negotiable.* 

2.  The  subject  of  the  assignment  of  choses  in  action  has 
been  often  under  the  consideration  of  the  Courts  in  England, 
as  well  as  the  United  States  ;  and  it  seems  clear  at  this  day, 
that  the  assignee  is  to  be  considered,  in  law  as  well  as  equity, 
the  party  beneficially  interested  ;  subject  indeed  to  any  legal 
claim  of  the  debtor,  but  free  from  any  claim  of  the  assignor, 
his  executors  or  administrators. (1) 

3.  All  choses  in  action  may  be  assigned  in  equity,  and  the 
assignee  thereby  acquires  an  equitable  title,  which  may  be  en- 
forced at  law  in  the  name  of  the  assignor,  and  which  cannot  be 

(1)  Cutts  V.  Perkins,  12  Mass.  211. 

*  At  common  law.  c/joses  tw  acii'on  are  not  assignable,  2  John.  1.  15  Mass. 
388.  See  1  Cranch,  367 — 466.  Appx.  A  note  or  bond,  payable  wholly  or  partly  in 
personal  services,  is  not  assignable.  3  Mis.  82.  4  Lilt.  9.  1  J.  J.  Marsh.  454.  2 
Pen.  965.  Nor  a  license  to  cut  timber  on  land.  Emerson  v  Fisk,  6  Grcenl.  200. 
Pease  v.  Gibson,  lb.  S3.  A  written  acknowledgment  by  A  that  he  had  bought  goods 
of  B,  which  he  was  to  settle  with  B's  creditors,  is  not  negotiable.  Nor  a  written  ac- 
knowledgment of  a  settlement  and  balance  due.  Nor  a  covenant  to  deUver  boards  or 
do  any  collateral  act,  though  made  payable  to  order.  Headly  v.  Vanness,  2  Pen.  722. 
Lacey  v.  Collins,  2  South.  489.  Bell  v.  Curtis,  1  Pen.  142.  Breen  v.  Ingram,  1  Bay, 
173.  Nor  a  guardianship  bond,  under  the  S.  C.  statute  of  1793.  Cobb  v.  Williams, 
1  Hill,  375.  A  right  of  action  for  a  tort  is  not  assignable.  Thus  a  claim  to  personal 
property,  adversely  held  by  anollier,  cannot  be  sold,  so  as  to  give  the  purchaser  aright 
of  action  in  his  own  name.  It  is  said,  that,  generally,  mere  personal  torts,  which  die 
with  the  party,  are  not  assignable.  Oiherwise  witli  vested  rights  ad  rem  and  in  re, 
possibilities  coupled  with  an  interest,  and  claims  growing  out  of  and  adhering  to  pro- 
perty. Gardner  V.  Adams,  12  Wend.  297.  See  3  Litt.  41.  Stogdell  v.  Fugate,  2 
Marsh.  136.  Comegys  v.  Vassc,  1  Pet.  193.  Shares  of  seamen  in  prizes,  captured 
by  private  armed  vessels,  are  not  assignable,  so  as  to  adii.it  a  suit  against  the  agent  in 
the  assignee's  name.    Usher  v,  De  Wolfe,  13  Mass.  290. 


340  SALE,    &.C.    OF    CIIOSES    IN    ACTION.  [Ch»p.    XIII. 

aflFected  by  his  release  or  bankruptcy.  A  debt  due  for  goods 
sold  and  delivered,  and  proveable  by  book  account,  may  be  as- 
signed.* So  an  unliquidated  balance  of  accounts  ;  and  if  the 
debtor  promise  payment  to  the  assignee,  he  may  sue  in  his  own 
name  for  the  amount  due,  when  ascertained.  So  a  contingent 
debt  is  assign able.(l) 

4.  It  has  been  held,  that  the  assignment  of  ?i  policy  of  insur- 
ance gives  the  assignee  an  equitable  interest,  though  the  under- 
writer be  not  notified.  But  in  another  case  it  is  said,  that  the 
assignee  cannot  avail  himself  of  the  policy,  unless  the  assign- 
ment were  made  bona  fide,  for  valuable  consideration,  and  with 
notice  to,  and  the  express  or  implied  assent  of  the  underwriter. 
In  case  of  such  assent,  either  express  or  implied,  or  founded  on 
usage,  the  assignee  may  claim  under  the  policy  from  the  com- 
mencement of  the  voyage  ;  the  assignor  is  discharged  from  the 
premium,  and  the  assignee  bound  to  pay  it.  But  every  set-off 
between  insurer  and  insured,  prior  to  the  assignment,  is  good 
against  the  assignees. (2) 

5.  Shares  in  corporations  constitute  an  important  class  of 
choses  in  action,  which  in  commercial  intercourse  are  often  as- 
signed, and  the  forms  and  occasions  of  assigning  which  are  gene- 
rally regulated  by  express  statute.  Some  cases  have  arisen, 
upon  the  question  how  far  such  regulations  must  be  literally 
c&mplied  with,  in  order  to  pass  a  title  to  the  assignee.  The 
further  question  is  sometimes  involved,  whether  such  shares  can 
be  assigned  so  as  to  defeat  a  lien  of  the  corporation  for  its  dues. 

6.  An   act   of  incorporation    provided,   that  no    transfer    of 

(1)  DLx  V.  Cobb,  4Mass.  608.  Gould  v.  Newman,  8.  239.  Parker  v.  Grout,  11. 
157.  Graves  V.  Brown,  11.  334.  Wood  v.  Partridge,  11.  488.  Usher  v.  Be  Wolfe,  13. 
290.  Crocker  v.  Whitney,  10.  316.  Mowry  v.  Todd,  12.  431.  Allen  v.  Holder),  &. 
133.  Brown  V.  Maine  Bank,  11.153.  Dunn  v.  Snel],  15.  481.  Norris  v.  Douglass, 
2  South.  817.  Black  v.  Everett,  5  Stew.  &,  P.  60.  Garland  v.  Raheson,  4  Rand. 
266.  Lyon  v.  Summers,  7  Conn.  399.  Wadsvvorth  v.  Griswold,  Harper,  17.  Sloan 
V.  Sommers,  2  Green.  510.     Woodbridge  v.  Perkins,  3  Day,  364. 

(2)  Wakefield  v.  Martin,  3  Mass.  558.  Carroll  v.  Boston  M.  I.  Co.,  8.  615. 
Cleveland  v.  Clap,  5.  201.  Gourdon  v.  Ins.  Co.,  &c.,3  Yeates,  327.  1  Bir.n.  429. 
Spring  V.  South  Carolina,  &.C.,  8  Wheat.  268. 

*  In  South  Carolina,  the  assignment  of  an  open  account  merely  gives  an  authority 
to  receive  the  money  and  settle  the  accoiuit.  Hence,  even  after  notice,  a  receipt  from 
the  assignor  will  be  a  good  discharge.     Brown  v.  Rees,  2  Const.  498.     I  Brock  458. 


Sect.  I.]  WHAT    MAY    BE    ASSIGNED.  341 

shares  should  be  valid,  till  the  whole  capital  slock  were  paid  in. 
Held,  a  corporator  might  still  transfer  to  his  creditor,  by  way  of 
security,  his  equitable  interest  in  the  corporation,  before  having 
paid  his  whole  subscription ;  and  that  the  assignee  was  entitled 
to  a  certificate  on  paying  the  balance  due.(l) 

7.  The  charter  of  a  bank  provided,  that  the  stock  should  be 
retained  by  the  subscribers  for  one  year  from  the  date  of  such 
charter,  and  a  by-law  made  all  shares  liable,  as  security  for  debts 
due  from  the  persons  owning  them  to  the  bank.  Within  the 
year,  A,  a  stockholder,  assigned  his  shares  to  B,  who  notified 
the  bank,  and  paid  the  last  instalment  due  upon  them.  The 
bank,  having  afterwards  made  a  loan  to  A,  claimed  to  hold  the 
shares  as  security  therefor.  Held,  it  could  not  thus  hold 
them  against  B,  the  transfer  to  him,  though  not  entitling  him  to 
a  certificate  in  his  own  name,  being  an  equitable  assignment, 
which  bound  the  bank  after  notice. ,2) 

8.  The  by-laws  of  an  insurance  company  provided,  that  the 
certificates  of  stock  should  be  transferred  only  at  the  ofiice  of 
the  company,  by  the  holder  or  his  attorney;  that  transfers 
should  be  authenticated  by  the  president,  and  attested  by  the 
secretary,  and  that  it  should  be  the  duty  of  the  former  to  attend 
at  the  ofiice  during  business  hours.  An  assignment  of  certain 
shares  was  made  to  A  and  B,  partners,  with  a  power  to  them  to 
transfer  the  shares  upon  the  books.  A  called  at  the  office  dur- 
ing business  hours,  and,  in  the  absence  of  the  president,  exhi- 
bited to  the  secretary  the  assignment  and  power,  and  demanded 
that  the  shares  should  be  transferred  on  the  books,  and  certifi- 
cates issued  to  himself  and  B  ;  but  the  secretary  refused,  say- 
ing it  was  the  business  of  the  president.  Held,  the  company 
were  bound  to  make  the  transfers  and  issue  certificates,  though 
they  held  notes  of  the  assignors  for  premiums,  one  of  which 
was  then  due.  (3) 

9.  The  equitable  interest  in  a  judgment  may  be  assigned,  by 

(1)  Quinerv.  Marbleliead,  &c.,  10  Mass.  476.     Alvord  v.  Smith,  5  Pick.  232. 

(2)  Nesmiih  v.  Washington,  &c.,  6  Pick.  324. 

(3)  Sargent  v.  Franklin,  &c.,  8  Pick.  90. 


342  SALE,  &c.  OF  cuosEs  IN  ACTION.         [Chap.  XIII. 

delivery  of  the  execution.  And  where  a  judgment  and  ex- 
ecution are  bona  fide  assigned  for  valuable  consideration  ;  the 
assignee  may  cause  the  execution  to  be  levied  upon  lands  of  the 
debtor ;  and,  if  the  assignor  afterwards  release  his  right  to  the 
assignee,  the  latter  will  have  a  good  title  against  creditors  of 
the  assignor,  having  notice  of  the  assignment,  though  they  at- 
tach the  property  before  such  release.  But  the  assignment  of 
an  execution  does  not  enable  the  assignee  to  sue,  in  his  own 
name  the  oflBcer  who  fails  to  collect  and  pay  over  the  money. 
Nor  does  the  assignment  of  a  judgment  transfer  the  assignor's 
right  to  recover  against  the  sheriff  for  previous  neglect  of  du- 
ty, respecting  executions  issued  on  such  judgment.  Nor  does 
the  assignment  extinguish  such  right.(l)     (See  infra,  12.) 

10.  The  assignor  of  a  judgment  cannot  discharge  it,  either 
by  receiving  the  money,  or  agreeing  to  off-set  a  claim  held  by 
the  debtor  against  himself  (2) 

11.  If  the  assignor  of  a  judgment  enters  up  satisfaction  on 
the  record,  after  notice  to  the  debtor  ;  the  Court,  on  motion, 
will  vacate  such  entry. (3) 

12.  An  assignee,  having  recovered  a  judgment  in  the  as- 
signor's name,  handed  an  execution  to  the  sheriff,  notifying 
him  at  the  same  time  of  the  assignment.  The  sheriff  suffered 
the  debtor  to  escape,  after  arrest.  Held,  he  was  liable  to  an  ac- 
tion by  the  assignee  in  the  assignor's  name,  and  that  the  latter 
could  not  defeat  such  action  by  a  release. (4)     (See  supra,  9.) 

13.  The  assignment  of  a  judgment  carries  the  damages  af- 
terwards given  npon  the  dissolution  of  an  injunction,  and  upon 
appeal,  «fcc.(5) 

14.  The  assignee  of  a  judgment,  recovered   in  another  state 


(1)  Dunn  V.  Snell,  15  Mass.  481.  Biown  v.  Maine  Bank,  11  Mass.  153.  Poarson 
V.  Talbot,  4  Lilt.  435.  Patterson  v.  Wilkinson,  Wright,  501.  Governor  v.  Griffin,  2 
Dev.  352.    Jones  v.  Com.,  2  Lilt.  357.     Com.  v.  Fuqua,  3  Lilt.  41 

(2)  Sampson  v.  Fletcher,  1  Verm.  168. 

(3)  Warden  v.  Eden,  2  John.  Cas.  121.  258.     1  John.  531. 

(4)  Marlin  v.  Hawks,  15  John.  405. 

(5)  Marshall  v.  Craig,  3_Bibb.  291. 


Sect.    I.]  WHAT    MAY    BE    ASSIGNED.  343 

against  a  citizen  of  Kentucky,  may  use  the  name  of  the  assign- 
or to  enforce  payment ;  but  if  the  assignor  be  dead,  and  there 
be  no  administrator  in  Kentucky,  the  assignee  may  apply  to 
Chancery  in  his  own  name,  and  will  not  be  compelled  to  ad- 
minister.(J) 

15.  A  decree  in  Chancery  is  not  assignable  at  law,  but  may 
be  assigned,  for  valuable  consideration,  in  Equity. (2) 

16.  The  bid  of  a  purchaser  at  sheriff's  sale  is  assignable, 
and  the  assignee,  by  a  bill  of  sale  from  the  officer,  gains  a  valid 
title.(3) 

17.  A  bond  with  penalty,  conditioned  to  convey  land  to  the 
obligee  or  his  appointee,  is  assignable  after  forfeiture. (4) 

18.  The  trustees  of  an  academy  may  assign  to  a  college,  which 
is  authorized  to  receive  funds  in  their  hands,  notes  included  in 
such  funds. (5) 

19.  In  Kentucky,  by  Statute,  a  covenant  to  pay  a  certain 
sum  in  promissory  notes  is  assignable. (6) 

20.  The  assignment  of  a  bill  of  sale  of  chattels  passes  a  title,^ 
so  that  the  assignee  may  bring  trover  against  a  subsequent  pur- 
chaser.(7) 

21.  A  town,  liable  for  the  support  of  a  pauper,  and  making 
provision  therefor,  may  validly  assign  his  services  to  one  who 
will  contract  to  furnish  such  support.  But  a  servant  bound  by 
indenture  is  not  a  proper  subject  of  assignment,  the  trust  of  the 
master  being  strictly  personal. (8) 

22.  A  contract  was  made  between  a  town  and  one  A,  by 
which  the  latter  was  to  support  certain  relatives  while  they  liv- 
ed, and  the  town  to  give  him  the  use  and  occupation  of  a  farm 

(1)  Cobb  V.  Thompson,  1  Marsh.  308. 

(2)  Coates  v.  Muse,  1  Brock.  652. 

(3)  Blount  V.  Davis,2Dev.  19. 

(4)  Ensign  v.  Kellogg,  4  Pick.  1. 

(5)  Amherst,  &c.  v.  Cowls,  6  Pick.  427. 

(6)  Sirlott  V.  Tandy,  3  Damon,  142. 

(7)  Southworth  v.  Sebring,  2  Hill,  587. 

(8)  Wilson  V.  Church,  1  Pick.  23.  Hall  v.  Gardner,  1  Mass.  172.  Davis  v.  Co- 
burn,  8. 299. 


344  SALE,  &c,  OF  cnosES  IN  ACTION,         [Chap.  XIII. 

during  the  lives  of  his  parents,  and  afterwards  give  him  a  deed 
of  it.     Held,  not  an  assignable  contract. (1) 


Section  II. — foum  of  assignment,   whether  in  writ- 
ing, BY   DELIVERY,    SlC. 

1.  It  was  once  held,  that  the  assignment  of  an  instrument 
must  be  of  as  high  a  nature  as  the  instrument  itself.*  So,  it 
seems,  that  any  instrument,  not  negotiable,  could  be  assigned 
only  by  deed.  It  was  afterwards  said  to  be  doubtful,  whether 
a  manual  delivery  would  be  sufficient.  But  later  cases  have 
decided,  that  such  delivery  is  a  sufficient  assignment  of  a  note, 
bill,  judgment,  execution,  or  other  chose  in  action. (2) 

2.  Thus,  in  New  York,  an  obligation  or  covenant  may  be  as- 
signed by  an  unsealed  instrument. (3) 

3.  So  a  judgment  may  be  assigned  by  parol,  or  by  an  unsealed 
writing. (4) 

4.  If  an  assignment  be  written  upon  the  back  of  an  instru- 
ment, but  not  signed,  and  the  instrument  delivered  to  the  as- 
signee for  valuable  consideration;  this  is  a  valid  transfer. (5) 

5.  But  a  verbal  agreement,  which  contemplates  a  further 
assignment,  will  not  be  held  to  be  itself  an  assignment,  more 
especially  where  the  rights  of  creditors  have  intervened  by  the 
bankruptcy  of  both  parties. 

6.  A,  being  assignee  of  a  bankrupt,  had  a  demand  for  collec- 

(1)  Clinton  V.  Fly,  1  Faiif.  292. 

(2)  Perkins  v.  Parker,  1  Mass.  117.  Wood  v.  Partridge,  11.  488.  Cults  v.  Per- 
kins, 12.  206.  Willis  V.  Twambly,  13.  204.  Jones  v.  Witter,  13.  304.  Dunn  v. 
Snell,  15.  481.  Quiner  v.  Marblehead,  &c.,  10  Mass.  476.  Titcomb  v.  Thomas,  5 
Greenl.  282.  Clark  v.  Rogers,  2.  147.  Bngge  v.  Dorr,  19  John.  96,  17.  284.  3 
Greenl.  349,  2.  322.     1  Har.  &  J.  114. 

(3)  Dawson  v.  Coles,  16  Johns  51.     Howell  v.  Bulkley,  1  N.  &  M.  250. 

(4)  Ford  V.  Stuart,  19  Johns.  342. 
(6)  Mowry  v.  Todd,  12  Mass.  281. 

*  It  has  been  held  in  North  Carolina,  that  a  written  contract  can  l)e  assigned  only 
by  a  writing  upon  the  paper  which  contains  it.     Estes  v.  Hairston,  1  Dev.  354. 


Sect.    II.]  FORM    OF    ASSIGNMENT,    &C.  •       345 

tion  against  B,  a  creditor  of  the  bankrupt,  who  had  proved  his 
claim.  A  being  ordered  to  attach  B's  property,  an  attachment 
was  issued  and  delivered  to  an  officer,  who  was  about  to  serve  it 
when  it  was  agreed  between  A  and  B  that  A  should  retain  the 
monies  which  should  come  to  his  hands,  as  assignee,  on  account 
of  this  claim  ;  and  that  B  should  assign,  for  benefit  of  creditors, 
his  claims  on  the  bankrupt's  estate.  The  attachment  was  not 
served.  B  afterwards  became  bankrupt,  and  his  assignees  sued 
to  recover  from  A  the  money  received  by  him  as  assignee.  Held, 
notwithstanding  the  above  agreement,  the  action  would  lie,  the 
parties  having  never  made  the  proposed  assignment,  nor  signed 
any  writing  at  the  time,  and  it  being  against  public  policy,  to 
give  effect  to  loose  bargains  in  cases  of  bankruptcy.(l) 

7.  A  letter  of  attorney,  irrevocable,  to  receive  money  to 
the  attorney's  own  use,  is  prima  f tide  an  assignment ;  but  may 
be  controlled  by  extrinsic  evidence. ("2) 

8.  Agreement  by  A  to  assign  to  B  part  of  a  judgment,  re- 
covered by  C  against  D.  Held,  no  execution  of  such  agreement, 
to  send  B  a  copy  of  the  judgment,  with  an  assignment  by  C  to 
A.(3) 

9.  Where  a  bill  of  exchange  is  assigned  by  delivery  to  several 
persons,  one  of  them  may  assign  his  share  of  it  to  the  rest,  by 
delivery  to  them,  and  payment  to  him  of  the  consideration. (4) 

10.  An  oral  agreement  between  a  plaintiff  and  a  third  person, 
that  the  latter  shall  receive  the  money  sued  for,  is  not  an  assign- 
ment.(5) 

11.  The  secretary  of  a  corporation  received  an  order  for 
money,  payable  to  himself  personally,  the  money,  when  paid,  to 
be  applied  in  payment  of  a  debt  due  the  corporation  from  the 
drawer.  The  secretary  afterwards  passed  it  over  to  the  treasur- 
er for  that  purpose,  with  notice  to  the  acceptor.  Held,  a  good 
assignment,  and  that  the  secretary  could  not  discharge  the  ac- 
ceptor.(6) 

(1)  Foster  v.  Lowell,  4  Mass.  308. 

(2)  Gerrish  v.  Sweetser,  4  Pick.  374. 

(3)  Harris  v.  Earle,  4  Har.  &  J.  274. 
^4)  Titcomb  v.  Thomas,  5  Greenl.  282. 

(5)  Seaver  v.  Bradley,  6  Greenl.  60. 

(6)  Twetl  V.  Green,  4  Greenl.  384. 

44 


346  SALE,  &c.  OF  cHosEs  IN  ACTION.         [Chap.  XIII. 

13.  A  acknowledged  in  writing,  that  he  had  settled  his  ac- 
count with  B,  and  found  a  certain  balance  due  B.  B,  at  the 
bottom  of  this  instrument,  wrote  as  follows — "  t!.e  above  ac- 
knowledgment of  A  is  to  be  understood  due  to  C,  being  for 
transactions  by  me  on  his  account.  B."  It  seems,  this  is  an 
assignment  to  C,  which  authorizes  him  to  bring  an  action  of 
debt,  describing  both  writings  in  the  declaration,  and  not  stat- 
ing the  one  signed  by  B,  as  an  assignment  for  pecuniary  conside- 
ration.(1) 

13.  A  bond  having  been  given  to  the  acting  partner  of  a  late 
firm,  he  afterwards  conveyed  all  his  real  and  personal  estate  in 
trust  for  the  payment  of  his  debts  and  those  of  the  firm  ;  not 
mentioning  those  due  to  the  firm.  Held,  this  assignment  did 
not  include  the  bond  above  named. (2) 

14.  A,  holding  a  bond  of  B,  put  it  into  C's  hands,  to  collect 
when  due,  and,  if  not  paid,  to  hand  it  to  an  attorney  for  collec- 
tion, which  was  done.  A  then,  by  letter,  stated  to  C,  that  he 
owed  D  $200  out  of  the  money  B  owed  him,  and  desired  C, 
when  he  should  collect  it,  if  he  (A)  were  not  present,  to  pay 
the  whole  to  D.  D  presented  the  letter  to  C,  who  merely  told 
D,  that  B's  bond  was  in  the  hands  of  an  attorney.  A  owed  D 
less  than  the  amount  of  the  bond.  Held,  A's  letter  was  neither 
an  equitable  assignment  to  D  of  any  part  of  B's  debt,  nor  a  se- 
curity for  D's  debt. (3) 

15.  A  note  in  the  hands  of  a  depositary  was  assigned  by  a 
separate  writing,  with  power  to  sue.  The  depositary  having 
refused  to  deliver  it  to  the  vendee  ;  held,  the  latter  might  main- 
tain trover  against  him  in  the  name  of  the  vendor. (4) 

16.  A,  holding  a  note  against  B,  receives  from  B  another 
note,  to  be  collected,  and  the  proceeds  applied  in  payment  of 
the  former  one.  Held,  an  equitable  assignment,  which  vested  a 
power  coupled  with  an  interest  in  A,  who  therefore  was  not  lia- 
ble in  trover  for  refusing  to  return  the  assigned  note. (5) 

(1)  Cunningham  v.  Herndon,  2  Call.  447. 

(2)  Anderson  v.  Bullock,  4  Munf.  442. 

(3)  Clayton  v.  Fawcett,  2  Leigh.  1?. 

(4)  Day  V.  Whitney,  1  Pick.  603. 

(5)  CanfieW  V.  Mongei-,  12  John.  S46.  , 


Sect.    II.]  FORM    OF    ASSIGNMENT,    &C.  347 

17.  An  order,  bill  or  draft,  drawn  for  the  whole  of  a  particu- 
lar fund,  is  an  equitable  assignment  thereof,  after  notice  to  the 
drawee.  Otherwise,  where  it  is  for  only  part  of  a  fund.*  And 
an  order  is  prima  facie  a  good  assignment,  though  not  express- 
ed as  for  value. (1) 

18.  A  ship-master  drew  a  bill  of  exchange  upon  the  con- 
signee of  goods  for  the  money  which  might  become  due  to  him 
for  freight,  upon  delivery  of  the  goods.  Before  the  payee  came 
in  possession  of  the  bill,  the  drawer  died  ;  but  it  was  afterwards 
accepted  and  paid  by  the  drawee.  Held,  the  bill,  though  in- 
valid as  such,  was  a  legal  assignment  of  the  drawer's  claim  for 
freight  when  it  should  fall  due  ;  and  that  the  administrator  of 
the  drawer  therefore  could  not  recover  this  claim  from  the  con- 
signee.(2) 

19.  A  gave  to  B  an  order  on  C,  his  agent,  to  pay  B  a  certain 
sum  from  such  debts  of  A  as  should  be  received  by  C,  which 
order  C  accepted.  Held,  an  assignment  of  the  funds  to  the 
amount  of  the  order. (3) 

20.  But  where  an  order  is  in  its  terras  general,  and  includes 
the  proceeds  of  other  securities  than  the  one  in  question,  and 
is  accepted  subject  to  certain  conditions ;  it  is  not  an  assign- 
ment of  the  note  referred  to. 

21.  A,  holding  the  note  of  B,  left  it,  with  other  demands, 
with  C,  an  attorney,  for  collection.  A  afterwards  drew  an  or- 
der upon  C,  to  pay  D  what  he  should  receive  upon  the  above  de- 
mands, which  order  C  accepted  as  follows — "  I  will  pay  such 
sums  as  I  receive,  after  getting  my  due,  to  the  person  presenting 
this  order."  Held,  not  to  be  an  assignment  of  the  note,  and 
that  C  was  justified  in  paying  it  to  A. (4) 

(1)  Mandeville  V.  Welch,  5  Wheat.  285.  Robbins  v.  Bacon,  3  Greenl.  346.  Cor- 
ser  V.  Craig,  1  Wash.  424.  Adams  v.  Robinson,  1  Pick.J462.  Harrington  v.  Rich, 
6  Verm.  666. 

(2)  Cults  V.  Perkins,  12  Mass.  206. 

(3)  Peyton  v.  Hallett,  1  Caines,  363.     3  John.  72. , 

(4)  Thayer  v.  Havener,  6  Greenl.  212. 

*  An  assignment  will  be  protected,  though  not  absolute,  or  of  the  whole  subject 
matter  ;  if  it  passes  a  power  with  rh  interest.     Wheeler  r.  Wheeler,  9  Cow.  S4. 


348  SALE,  &/C.  OF  cHosEs  IN  ACTION.       [Chap.  XIIL 


Section  III. — effect   of  an  assignment  upon  the  rights 
OF  th^  parties — notice,  off-set,  &c. 

1.  It  has  been  already  intimated,  and  is  indeed  a  necessary 
inference  from  the  respective  rights  of  giving  and  taking  an 
assignment  of  cJioses  in  action  ;  that,  after  the  assignment,  the 
liability  of  the  debtor  being  transferred  from  assignor  to  assign- 
ee, payment  is  to  be  made  to  the  latter  instead  of  the  former. 
This,  however,  is  subject  to  the  equitable  qualification,  that  the 
debtor  has  received  notice  of  the  assignment.  What  kind  or 
degree  of  notice  is  necessary,  to  impose  the  new  obligation  up- 
on him,  has  been  a  point  of  somewhat  conflicting  decisions. 

2.  In  New  York,  it  is  said,  something  equivalent  to  direct 
and  positive  notice  of  the  assignment  is  necessary,  to  charge 
the  debtpr  with  a  fraudulent  payment  to  the  assignor.  But  in 
the  same  state,  as  well  as  others,  it  seems  to  be  held,  that  an  as- 
signment will  bind  any  party  who  has  such  knowledge  of  facts 
and  circumstances  as  ought  to  put  him  on  inquiry.  Special 
notice  is  unnecessary,  nor  need  the  assignee  exhibit  to  the  debt- 
or the  instrument  itself,  or  any  other  evidence.(l) 

3.  Thus  the  holder  of  a  due-bill  assigned  it  by  indorsement  in 
blank.  The  assignee  demanded  payment,  but  did  not  show 
the  due-bill,  nor  expressly  state  that  it  had  been  assigned  ;  and 
the  debtor  promised  to  settle  it  the  next  week  in  New  York. 
He  afterwards  paid  it  in  New  York  to  the  assignor.  Held,  the 
assignee  could  not  maintain  an  action  in  the  assignor's  name.  (2) 

4.  In  Connecticut,  the  assignment  of  a  note  or  book-debt  is 
not  complete  till  notice  to  the  debtor ;  but  the  property  remains 
liable  to  creditors  of  the  assignor.  Otherwise  in  Massachu- 
setts, Pennsylvania  and  Kentucky  ;  where  the  assignment  itself 
passes  an  equitable  title,  subject  only  to  the  duty  of  notifying 

(1)  Meghan  v.  Mills,  9  Johns.  64.  Anderson  v.  Van  Alen,  12  John.  343.  U.  S, 
V.  Sturges,  Paine,  625.  lb.  629.  Kellogg  v.  Kiauser,  14  S.  &  R.  137.  Davenport 
V.  Woodbridge,  8  Greenl.    17. 

(2)  lb. 


Sect.    III.l  EFFECT    OF    AN    ASSIGNMENT,    &C.  349 

the  debtor,  in  season  to  enable  him  to  resist  a  claim  made  by  a 
creditor  of  the  assignor.(l) 

5.  In  the  same  state,  an  assignment  is  good  between  the 
parties,  without  notice  ;  and  one  having  knowledge  of  it  is  not 
a  bona  fide  creditor,  who  can  take  the  property  for  his  debt. (2) 

6.  In  Maine,  notice  is  sufficient,  without  producing  the  in- 
strument assigned,  or  any  evidence  of  the  assignment. (3) 

7.  Where  the  assignment  of  a  chose  in  action  is  lawfully  re- 
scinded, notice  to  the  debtor  will  complete  the  effect  of  such 
rescinding,  and  restore  to  the  assignor  the  ownership  and  con- 
trol of  the  debt. 

8.  An  infant  assigned  a  cJiosc  in  action  in  payment  for  goods, 
and  afterwards  offered  to  return  the  goods,  and  take  back  the 
chose.  The  debtor  received  notice  that  the  contract  was  thus 
rescinded.  Held,  the  chose  thereby  ceased  to  be  the  property 
of  the  assignee,  and  the  infant  might  validly  discharge  it.  (4) 

9.  The  right  of  an  assignee  is  subject  to  the  further  qualifi- 
cation, that  the  debtor  may  offset  any  claim,  in  a  suit  by  the 
assignee,  which  he  might  have  done,  had  it  been  brought  by 
the  assignor ;  unless  he  promise,  without  exception,  to  make 
payment  to  the  assignee. (5) 

10.  The  debtor  may  offset  a  demand  against  the  assignee, 
though  the  suit  is  in  the  assignor's  name. (6) 

11.  The  debtor  cannot  offset  a  demand  held  by  him  at  the 
time  of  assignment,  if  he  had  notice  from  the  assignee  or  his 
agent  that  it  was  about  to  be  made,  and  did  not  disclose  such 
demand. (7) 

12.  Nor  where  his  conduct  is  such  as  in  equity  to  deprive 
him  of  the  right  of  set-off.(8) 

13.  A  gave  B  a  receipt  for  lumber  to  a  certain  amount,  to  be 

(1)  Woodbridge  v.  Perkins,  3  Day,  364  5.  534.  Dix  v.  Cobb,  4  Mass.  512.  Ste- 
vens V.  Stevens,  1  Aslmi.  190.     Stockton  v.  Hall,  Hard.  160. 

(2)  Bishop  V.  Holcomb,  10  Conn.  444. 

(3)  Davenport  v.  Woodbridge,  8  Greenl.  17. 

(4)  Willis  V.  Twambly,  13  Mass.  204. 

(5)  12  Mass.  193.  195.  281.  14.291.  1  Paige,  319.  1  Root,  349.  20  John.  144. 
5  Mass.  215.    3  Monr.  510.     3  Hayw.  199. 

(6)  Corscr  v.  Craig,  1  Wash.  C.  424. 

(7)  King  v.  Fowler,  16  Mass.  397. 

(8)  Kemp  v.  M'Pherson,  7  Har.  &  J.  320. 


350  SALK,  &c.  OF  cHosEs  IN  ACTION.       [Chap.  XIII. 

applied  in  payment  of  a  debt  due  from  B  to  A.  B  assigned  the 
receipt  to  C,  who  notified  A  thereof,  and  then  brought  an  ac- 
tion against  him  in  B's  name  for  goods  sold  and  delivered. 
Held,  although  the  receipt  was  not  at  first  assignable,  being  ap- 
propriated to  payment  of  B's  debt,  yet,  as  the  parties  had  chang- 
ed this  application,  and  A  had  disabled  himself  to  make  it;  the 
action  would  lie,  notwithstanding  a  settlement  between  A  and 
B.(l) 

14.  A,  having  a  claim  for  goods  sold,  against  B,  became  sure- 
ty in  a  note  given  to  B  by  C,  which,  not  being  negotiable,  was 
afterwards  assigned,  by  delivery,  to  D.  D  demanded  payment 
of  A,  who  referred  him  to  C  as  the  principal,  but  was  silent  as 
to  his  own  claim  against  B.  Held,  A  hereby  waived  his  right 
to  offset  such  claim  against  the  note  in  the  hands  of  D.(2) 

15.  A,  having  given  a  bond  to  B,  took  an  assignment  ©f  a 
bond  for  the  same  amount,  made  by  B.  A  offered  to  offset  his 
claim  against  the  other,  but  B  refused,  on  the  ground  that  he 
had  an  equitable  counter-claim  against  the  assignors.  A  after- 
wards re-assigned  to  C,  for  valuable  consideration  and  without 
notice.  Held,  B  by  his  conduct  had  not  waived  his  right  of 
discount,  but  might  offset  a  judgment  recovered  upon  the  bond 
of  A  against  a  suit  upon  his  own  bond. (3) 

16.  A  gives  a  bond  to  B,  who  assigns  it  to  C,  there  being  at 
the  time  of  assignment  a  running  account  between  A  and  B. 
After  commencement  of  a  suit  upon  the  bond,  A  and  B  made 
a  settlement,  and  B  promised  at  the  foot  of  the  account  to  pay 
the  balance  found  due  in  three  years.  Held,  this  balance  could 
not  be  set-off  against  the  bond. (4) 

17.  An  assigned  bond  is  a  good  discount  against  another. 
But  if  the  plaintiff  can  show  by  a  receipt  that  the  former  has 
been  paid,  such  receipt  will  not  be  barred  by  the  statute  of  lim- 
itations, and  a  set-off  will  not  be  allowed. (5) 

18.  The  assignee  of  a  contract  is  concluded   in  Equity  by  a 

(1)  Eels  V.  Finch,  5  John.  193. 

(2)  Merrill  v.  Merrill,  3  Green).  463. 

(3)  Picket  V.  Morris,  2  Wash.  255. 

(4)  Scott  V.  Jones,  1  Brock.  244. 
{b)  Comply  r.  Aiken,  2  Bay.  481. 


Sect.    IV.]     REMEDIES    IN    CASE    OF    ASSIGNMENT,    &C.  351 

judgment  at  law  against  the  assignor,  if  he   had   notice  of  the 
siiit.(l) 


Section  IV. — remedies  in    case    op  assignment — suits  at 

LAW    and    in    equity,    DEFENCES,    &C. 

1.  The  assignee  of  an  instrument  not  negotiable  cannot  sue 
upon  it  in  his  own  name,  though  expressly  made  payable  to  as- 
signs.* But  judgment  will  not  be  arrested  for  this  cause.  If  the 
assignor  is  insolvent,  and  a  suit  is  pending  in  his  name  for  the 
assignee's  benefit,  the  Court  will  allow  the  defendant  to  suggest 
on  the  docket  for  whose  use  the  suit  is  brought,  and  will  rule 
the  assignee  to  respond  costs.  (2) 

2.  Where  one  who  holds  a  contract  obtains  the  money  due 
upon  it,  he  is  entitled  to  retain  the  money,  if  he  has  an  equita- 
ble right  to  it,  though  there  has  been  no  assignment  in  writing. 
But  unless  the  debtor  agrees  to  pay  hira,  an  action  must  be 
brought  in  the  name  of  the  assignor. (3) 

3.  If  the  assignor  of  a  chose  in  action  die,  the  assignee  may 
sue  in  the  name  of  his  executor,  &c.  On  the  other  hand,  if 
an  executor  promise  an  assignee  of  a  claim  against  the  testator, 
to  pay  such  claim,  in  consideration  of  the  assignment  and  of 
assets;  he  is  personally  liable. (4) 

4.  The  assignee  of  a  chose  in  action  may  sue  in  Chancery  in 
his  own  name,  though  the  assignment  were  without  considera- 
tion. But  the  assignee  of  an  insolvent  debtor  cannot  sue  in  the 
U.  S.  court,  unless  his  assignor  might  have  done  the  same.  Nor 
can  an  assignee  bring  a  suit  in  Equity,  merely  on   the  ground 

(1)  Curlisr.  Cisna,  1  Ham.429.    3  Greenl.  362.     1  Paige,  41. 

(2)  1  M'Cord,  219.  Gould  v.  Newman,  6  Mass.  2S9.  Porter  v.  Millet,  9.  101. 
Skinner  v.  Somes,  14.  107.     Canby  v.  Ridgway,  1  Binn.  496. 

(S)  Mowry  v.  Todd,  12  Mass.  281. 

(4)  Dawes  r.  Boylston,  9  Mass.  337.     12.  206.     1  Verm.  67. 

'  The  assignment  of  a  claim  passes  with  it  all  the  remedies  (or  its  recovery.  thoug!« 
»ot  »p9cially  mentioned.     Mehaffy  v.  Shnre,  t  Penns.  361. 


352  SALE,    &LC.    OF    CHOSF.S    IN    ACTION.  [Chap     XIII. 

that  km  does  not  allow  him  to  sue  in  his  own  name  ;  unless 
the  assignor  prevents  him  from  using  his  name,  or  would  him- 
self have  had  the  right  to  sue  in  Equity.  (1) 

5.  In  England,  the  king  may  sue  in  his  own  name  upon 
a  chose  in  action  assigned  to  him.  And  the  same  principle 
would  apply  to  the  United  States.  But  they  would  be  harred 
by  the  statute  of  limitations,  if  the  assignor  were  thus  barred. (2) 

6.  In  Mississippi,  the  assignee  of  a  chose  in  action  may  sue  in 
his  own  name.  Hence,  where  an  executor,  having  proved  the 
will  in  Kentucky,  assigned  a  note  due  the  estate  from  a  citizen 
of  Mississippi,  held,  the  assignee  might  sue,  without  proving  the 
will  in  that  state. (3) 

7.  Where  one  of  several  joint  promisees  is  also  promisor, 
neither  the  assignee  of  the  other  nor  of  all  the  promisees  can 
sue  at  law,  but  only  in  equity. (4) 

8.  An  assignment  of  a  chose  in  action,  founded  on  illegality, 
though  made  without  notice,  does  not  preclude  the  defendant 
from  setting  up  such  illegality  in  defence. (5) 

9.  Chancery  will  set  aside  an  assignment  void  at  law,  and  ne- 
cessarily leading  to  fraud  and  corruption.  Thus  D  assigned  all 
his  claim  and  right  of  action  against  A  for  a  quantity  of  wine, 
to  S,  in  trust  for  the  creditors  of  D.  P,  an  attorney,  having 
learned  the  grounds  of  the  claim  from  D  and  S,  purchased  the 
right  of  action  from  S,  who  supposed  it  desperate,  for  a  small 
sum,  and  then  prosecuted  the  suit  for  his  own  benefit,  and  ob- 
tained a  judgment  for  the  whole  amount.  Held,  the  agreement 
and  assignment  were  void  for  champerty  ;  and  on  condition 
that  S  should  refund  to  P  the  sum  paid,  a  perpetual  injunction 
was  awarded. (6) 

10.  Payment  to  the  assignor  is  a  good  defence,  if  the  assign- 
ment was  without  consideration.     Even  though   the  debtor  has 


(1)  Ensign  V.  Kellogg,  4  Pick.  1.     Sere  v.   Pilot,  6  Cranch,  335.     Moseley   v. 
Boush,  4  Rand.  392. 

(2)  U.  S.  V.  Bufoid,  3Pet.  13. 

(3)  Harper  v.  Butler,  2  Pet.  239.     See  Walker,  69. 

(4)  Gatewood  v.  Lyle,  5  Monr.  7.     Ramsey  v.  Johnson,  Minor,  418.    Justices  v. 
Armstrong,  3  Dov.  288. 

(5)  Falea  v.  Mayberry,  2  Galli.  560. 

(6)  Arden  v.  Patterson,  5  John.  Cha  44. 


Sect.    IV.]       REMEDIES    IN    CASE    OF    A.SSIGNMENT,    &C.  353 

previously  been  summoned  as  trustee  of  the  assignor,  and  dis- 
charged upon  disclosing  the  mere  fact  of  an  assignment.(l) 

11.  An  assignee  cannot  hold  the  assignor  liable,  on  account 
of  an  off-set  set  up  against  the  assigned  demand,  unless  he  have 
given  him  notice  thereof.(2) 

12.  If  the  defendant  in  a  suit  upon  an  assigned  demand  pre- 
vail, he  cannot  bring  an  action  against  the  assignee,  who  sued 
in  the  assignor's  name,  for  the  costs.  (3) 

13.  To  a  plea  of  former  recovery,  the  assignee  may  reply  the 
assignment  and  notice  to  the  debtor ;  alleging  also  that  the  for- 
mer action  was  not  prosecuted  by  authority  and  for  the  benefit 
of  the  assignee. (4) 

14.  After  assignment,  a  plaintiff  cannot  discontinue  his  action 
upon  the  assigned  demand.  Nor  bar  a  future  action,  by  collu- 
sively  dismissing  the  present  one.  (5) 

15.  One  entitled  to  a  distributive  share  in  an  estate,  assigned 
it,  but  afterwards  collected  and  used  the  amount  due.  Held, 
the  assignee  could  not  recover  the  money  from  him  in  a  suit  at 
law.  (6) 

i6.  Where  the  debtor,  after  notice  of  an  assignment,  pays  the 
assignor  and  takes  a  discharge  in  writing,  and  the  assignee  then 
brings  an  action  against  the  assignor  and  recovers  the  conside- 
ration paid  ;  the  assignee  may  still  recover  from  the  promisor  the 
balance  due,  after  deducting  the  amount  of  such  considera- 
tion.(7) 

17.  The  assignment  of  a  chose  in  action  imposes  on  the  debt- 
or an  equitable  and  moral  obligation  to  pay  the  assignee  ;  which, 
though  constituting  an  implied  assumpsit,  is  a  good  considera- 
tion for  an  express  promise,  that  will  authorize  a  suit  in  the  as- 
signee's own  name. (8) 

(1)  Dunning  v.  Say  ward,  1  Greenl.  366. 

(2)  Drayton  v.  Thompson,  1  Bay.  265. 

(3)  Bennet  v.M'Fall,2Rep.  Con.  Ct.t98.    2  Con.  R.  769. 

(4)  Dawson  v.  Coles,  16  John.  51. 

(5)  M'Cullum  V.  Coxe,  1  Dall.  139.    Welch  v.  Mandeville,  1  Wheat.  236. 

(6)  Smith  V.  Gray,  1  Dev.  &  Bat.  42. 

(7)  Willis  V.  Tvvambly,  13  Mass,  204.  Dix  v  Cobb,  4.  508.  Jones  v.  Witter,  13. 
304. 

(8)  10  Mass.  316.  12.281.  13.290,304.  14.107.  15.387.  7  Har.  &  J.  213. 
3N.  H  82.     7  Verm.  195.     1  M'Cord,  219.     4  Cow   13.     2  Fairf.  385. 

45 


CHAPTER  XIV, 


STATUTE  OF  FRAUDS. 

Section   I. — objects   and    mode  op    construction   of  the 
•         statute. 

Section   II. — to   what  contracts    the  statute    is  appli- 
cable. 

Section  III.— requisites  of  a  writing  under  the  statute. 

1.  Consideration. 

2.  Defendant  only  need  sign  the  writing. 

4.  Names  and  price  must  be  mentioned. 

5.  Several  memorandums  may  be  coupled  together. 
14.   What  is  a  signing. 

19.   Contracts  made  by  agents,  brokers,  £^c. 
37.  An  admission  must  be  taJcen  all  together. 

Section  I. — objects    and   mode    of    construction  of   the 

STATUTE. 

1.  The  Statute  of  Frauds  has  been  often  incidentally  refer- 
red to  in  previous  chapters  of  this  work.  Indeed  its  provisions 
so  far  modify  the  law  of  sales  of  personal  property,  that  an  ex- 
press or  tacit  reference  to  them  becomes  necessary,  in  treating 
of  almost  every  title  of  that  law.  It  remains  to  consider  brief- 
ly a  {ew  points  more  directly  and  exclusively  applicable  to  the 
act  in  question. 


Sect.  I.]    CONSTRUCTION  OF  THE  STATUTE,  &C.         355 

2.  It  may  be  useful  to  present  in  a  connected  form  some  of 
the  opinions  of  eminent  judges,  in  relation  to  the  purposes  and 
rules  of  construction  of  this  very  important  statute. 

3.  Mr.  Chief  Justice  Best  remarks,  that  "  the  Statute  of 
Frauds  and  the  statute  x>f  limitations  were  both  so  much  object- 
ed to  when  they  were  passed,  that  the  judges  appeared  anxious 
to  get  them  off  the  statute  book.  But  in  later  times  they  have 
become  desirous  to  give  them  their  full  effect.  I  think  the 
Statute  of  Frauds  is  a  good  and  wholesome  statute.  In  other 
countries,  contracts  are  made  in  writing."(l) 

4.  Mr.  Justice  Bayley  remarks,  that  the  Statute  of  Frauds  is 
a  remedial  law,  and  that  the  Court  ought  not  to  endeavor  to 
strain  words  to  take  a  case  out  of  it.(2) 

5.  The  Statute  of  Frauds  was  made  for  wise  and  beneficial 
purposes,  and  ought  to  be  construed  according  to  the  plain 
meaning  of  the  Legislature.  It  is  a  highly  beneficial  and  reme? 
dial  statute. (3) 

6.  Best,  J.,  says  "  so  far  from  being  disposed  to  restrain  the 
provisions  of  this  statute,  I  should  be  inclined  to  extend  them." 
**  It  is  better  to  adhere  to  the  words  of  the  statute,  unless  we 
plainly  see  that  the  words  used  do  not  express  the  meaning  of 
the  Legislature."  (4) 

7.  It  is  of  great  consequence  to  preserve  unimpaired  the  sev- 
eral provisions  of  the  Statute  of  Frauds,  which  is  one  of  the 
wisest  laws  in  our  statute  book. (5) 

8.  The  Statute  of  Frauds  is  a  very  beneficial  act ;  and  its 
objects  are  best  secured  by  adhering  strictly  to  its  provi- 
sions, unless  in  cases  which  clearly  do  not  fall  within  the  mean- 
ing.(6) 

9.  The  Statute  of  Frauds,  and  the  rule  excluding  parol  evi- 
dence in  relation  to  written  contracts,  are  subjects  quite  dis- 
tinct in  their  nature.  (7) 

( 1 )  Proctor  V.  Jones,  2  C .  &  P.  534. 

(2)  5  B.  &  A.  669. 

(3)  Per  Abbott,  Ch.  J.,  3  B.  &  A.  323.  683.    2  B.  &  C.  40, 

(4)  3  B.  &  A.  326. 

(5)  Per  Ld.  Kenyon,  Chaplin  v.  Rogers,  1  E.  194. 

(6)  Phillips  V.  Hunnewell,  4  Greenl.  379. 

(7)  Per  Ld.  Ellenborough,  1  M.  &  S.  26. 


356  STATUTE  OF  FRAUDS  [Chap.    XIV. 

10.  The  principal  desii^n  of  the  Statute  of  Frauds  was,  that 
parties  should  not  have  imposed  upon  thera  burdensome  con- 
tracts which  they  never  made,  and  be  fixed  with  goods  which 
they  never  contemplated  to  purchase.'!) 


SSCTION    II. — TO    -WHAT    CONTRACTS    THE    STATUTE    IS  APPUCA- 

BLE. 

i.  Executory  contracts  are  generally  void,  unless  the  Statute 
of  Frauds  is  complied  with.  Whether  the  Statute  is  applicable 
to  an  executed  agreement,  seems  to  be  somewhat  doubtful.  But 
the  weight  of  authority  is,  that  it  is  not  thus  applicable.  (2) 

2.  Where  a  thing  is  in  esse,  though  in  an  imperfect  state  and 
unfit  for  use,  and  the  parties  evidently  contemplate  what  is  sub- 
stantially a  sale,  the  Statute  of  Frauds  applies — as  in  case  of 
flour,  which  is  not  prepared,  and  unground.(3) 

3.  An  agreement  to  sell  oil,  not  yet  expressed  from  seed  in 
the  possession  of  the  vendor,  or  to  supply  a  house  with  pipes, 
to  be  laid  in  a  certain  way,  is  an  agreement  for  the  sale  of  goods 
within  the  Statute  of  Frauds.  So  a  sale  of  growing  trees,  to 
be  taken  within  a  certain  time.  (4) 

4.  It  is  held  in  New  York,  that  an  agreement  to  sell  a  boat- 
load of  wheat,  to  be  delivered  at  a  future  time,  is  within  the 
Statute  of  Frauds,  if  none  is  delivered  at  the  time,  no  earnest 
paid,  or  note  given.  But  in  Maryland  it  has  been  decided,  that 
an  agreement  to  deliver  wheat  at  a  future  time,  which  is  not  yet 
threshed,  is  not  within  the  Statute  of  Frauds.  The  same  case, 
however,  holds,  that  the  Statute  of  Frauds  applies,  where  work 


(1)  Per  Ld.  El'.enborough,  1  M.  &  S.  26. 

(2)  Eichelberger  v.  M'Cauley,  5  Har.  &  J.  213.  Rondeau  v.  VVyatt,  2  H.  Bl.  63. 
Cooper  v.Elslon,  7  T.  R.  14.  Bro'xn  v.  Bellows,  4  Pici.  189.  Bucknam  v,  Nash, 
8  Fairf.  474. 

(3)  Garbutt  v.  WaUon,  5  B.  &  Aid.  613. 

(4)  WUks  V.  Atkinson,  6  Taun.  11.  West  Middlesex,  &.c.  v.  Suwerkrop,  Moo.  & 
M   408.     Putney  v.  Day,  6  N.  H.  430. 


Sect,  II  ]  TO  WHAT    CONTRACTS  THE  STATUTE    APPLICABLE.     357 

is  to  be  done  upon  the  goods  before  delivery,  unless  such  work 
is  itself  a  part  of  the  contract.(l) 

5.  The  defendant  went  to  the  shop  of  the  plaintiff  and  select- 
ed a  lining  for  a  carriage,  the  plaintiff  having  on  hand,  at  the 
time,  the  body  of  a  carriage  nearly  completed,  but  not  lined- 
After  a  conversation  between  the  parties,  it  was  understood  that 
the  plaintiff  should  finish  a  carriage  for  the  defendant  in  a  fort- 
night. The  one  on  hand  was  accordingly  completed,  and  the 
defendant  notified,  and  requested  to  take  it.  Held,  this  was  not 
a  contract  of  sale,  within  the  Statute  of  Frauds,  but  the  agree- 
ment of  a  workman  to  manufacture  an  article  for  his  employer  ; 
and  therefore  that  it  was  valid,  though  not  in  writing.  The  car- 
riage intended  to  be  sold  did  not  exist  at  the  time,  as  the  mate- 
rials, though  partly  wrought,  had  not  been  put  together.  It 
would  be  otherwise  with  a  contract  of  sale,  either  of  a  thing  ex- 
isting at  the  time,  or  of  articles  which  the  vendor  usually  has  in 
his  business,  though  to  be  executed  infuturo.  But  in  this  case, 
there  must  bean  actual  or  constructive  delivery  and  acceptance, 
to  justify  an  action  for  the  price.  But  the  plaintiff,  having  de- 
clared originally  for  a  carriage  sold  and  delivered,  and  for  labor 
and  materials,  was  allowed  to  amend  by  adding  a  count  upon  an 
agreement  to  take  and  pay  for  a  carriage  to  be  built  by  his  or- 
der.(-2) 

6.  It  has  oeen  a  disputed  point,  whether  the  Statute  of  Frauds 
is  applicable  to  a  contract  concerning  the  sale  o(  shares  or  stock 
In  one  case,  all  the  judges  of  England  were  equally  divided  up- 
on this  question.  In  Massachusetts  it  is  held,  that  shares  in  a 
corporation  are  within  the  provision  of  the  Statute  of  Frauds, 
relating  to  the  sale  of  goods.  The  term  used  in  the  Statute, 
"  goods,"  from  the  Latin,  bona,  is  almost  as  extensive  in  its  im- 
port as  personal  property.  The  term  merchandise,  also,  includes 
all  subjects  of  traffic,  which  shares  undoubtedly  are.(3) 

7.  A  parol  contract  for  the  sale  of  both  real  and  personal  pro- 
perty, if  entire  and  founded  on  one  consideration,  being  void  as 


(1)  Jackson  t.  Coven, 5  Wend.  139.     Eicheiberrer  v. MCauJer.  3  Hir.  6c  J.  £13. 

(2)  Miser  v.  HowarUi,  21  Pick.  205. 

(3)  Pickenng  v.  Applebv,  1  Com.   R.  3*4.    2   &:}:;.  Cis.  Abr.  50.  ,>..  il .     2  P 
Wms.  SOS      Tisdale  v.  Hams,  20  Pick.  9. 


358  STATUTE  OF  FRAUDS.  [Chap.  XIV. 

to  the  former,  is  void  for  the  whole.  So  held,  in  case  of  the 
sale  of  wood  or  timber  composing  a  broken  down  mill,  in  con- 
nexion with  the  mill-site,  dz;c.(l) 

8.  Sales  at  auction  are  within  the  Statute  of  Frauds.(2) 


Section    III. — requisites  of    a  writing  under    the  stat- 
ute. 

1.  Where  one  agrees  in  writing  to  buy  goods  at  a  certain 
price,  he  will  be  bound,  although  no  consideration  is  proved, 
except  what  may  be  inferred  from  this  agreement. (3) 

2.  It  is  sufficient,  under  the  Statute,  that  the  party  defendant 
signed  the  contract,  whether  he  be  vendor  or  vendee,  though 
the  plaintiff  did  not ;  and  therefore  the  former  has  no  remedy 
against  the  latter.  In  relation  to  the  plaintiff,  in  such  case,  the 
Statute  merely  interposes  an  obstacle  in  the  way  of  evidence,  but 
does  not  affect  the  substance  of  the  contract.  The  defendant  is 
to  suffer  from  his  own  neglect  to  obtain  the  proof  necessary  to 
charge  the  plaintiff  (4) 

3.  A  contract  for  the  sale  of  goods  binds  a  party  who  signs 
the  memorandum,  though  he  receives  no  counterpart  from  the 
other,  though  his  signature  is  above  the  body  of  the  memoran- 
dum, and  though  it  does  not  specify  the  weight  of  the  goods. 
But  such  a  contract,  without  delivery,  does  not  pass  the  title  to 
the  goods. (5) 

4.  The  memorandum,  required  by  the  Statute,  must  mention 
the  names  of  both  parties  or  their  agents,  and  the  price.  A 
written  offer  or  proposal  is  insufficient,  unless  it  be  also  accept- 
ed in  writing. (6) 


(1)  Thayer  v.  Rock,  13  Wend.  53. 

(2)  Lon;?,  (Am.  Ed.)  60.    Davis  v.  Rowell,  2  Pick.  64.    Chit,  on  Contr.  317  a. 

(3)  Egortonv.  Malhews,  6  E.  307. 

(4)  Thornton  v.  Kernpster,  5  Taun.  788.     RussoH  v.  NicoU,  3  Wend.  112. 

(5)  Penniman  v  Hailshorn,  13  Mass.  87. 

(6)  Champion  v.  Pluninier,  I  New  R.  252.     Elmore  v.  Kingscote,  5  B.  &  C.  583 


Sect.    III.]    REQUISITES    OF    A    WRITINO    UNDER    STATUTE.        359 

5.  To  satisfy  the  statute,  the  whole  terms  need  not  be  in  one 
memorandum.  It  is  sufficient,  that  they  may  be  collected  from 
several  writings  referring  to  one  agreement,  or  from  subsequent 
letters  which  refer  to  each  other,  whereby  the  transaction  is  ad- 
mitted.(1) 

6.  Thus  where  the  purchaser  of  a  quantity  of  flour,  after 
part-delivery,  notified  the  vendor  in  writing  that  the  flour  was 
bad  and  unsaleable,  and  that  he  must  come  and  take  it  away  ; 
which  notice  stated  the  quantity,  quality,  price  and  time  of  de- 
livery ;  and  the  vendor's  attorney  replied  to  the  notice  in  writ- 
ing, that  the  vendor  had  performed  the  agreement  as  far  as  it 
had  gone,  and  was  ready  to  complete  it ;  held,  there  was  a  suf- 
ficient memorandum  within  the  Statute  of  Frauds. (2) 

7.  Whether  or  not  a  bill  of  parcels,  in  which  the  name  of 
the  vendor  is  printed,  delivered  to  the  vendee  at  the  time  of  an 
order  for  future  delivery,  is  a  sufficient  memorandum  within  the 
Statute  ;  a  subsequent  letter,  written  and  signed  by  the  vendor, 
and  referring  to  the  order,  may  be  connected  with  the  bill  of 
parcels,  so  as  to  take  the  case  out  of  the  Statute.  (8)     (See  s.  14.) 

8.  An  order  for  goods,  written  and  signed  by  the  vendor  in 
the  book  of  the  vendee,  may  be  connected  with  a  letter  of  the 
vendor  to  his  agent,  mentioning  the  name  of  the  vendee,  and 
with  a  letter  from  the  vendee  to  the  vendor,  claiming  perform- 
ance of  the  agreement. (4) 

9.  Where  a  contract  in  writing  or  note  exists,  which  binds 
one  party,  any  subsequent  note  in  writing  signed  by  the  other 
binds  him,  if  it  either  contains  in  itself  the  terms  of  the  con- 
tract, or  refers  to  a  writing  which  contains  them.  (5) 

10.  The  defendant,  having  purchased  a  lease  at  auction,  wrote 
to  the  auctioneer,  to  send  the  key  of  the  premises,  stating  further, 
that  his  auctioneer  wished  to  take  an  inventory  of  the  fixtures. 
The  two  auctioneers  met,  and,  having  disagreed  as  to  the  valu- 
ation, appointed  an  umpire,  and  enclosed  the  inventory  to  him, 

(1)  Chit,  on  Contr.  (Am.  Ed.)  314. 

(2)  Jackson  v.  Lowe,  7  Moo.  219.    Schneider  v.  Norris,  2  M.  &  S.  288,  ace. 

(3)  Saunderson  v.  Jackson,  2  B.  &  P.  238.     (See  2  B.  &  C.  947.) 

(4)  Allen  v.  Bennet,  3  Taun.  169. 

(5)  Dobell  V.  Hutchinson,  3  Ad.  &  Ei.  371. 


360  STATUTE  OF  FRAUDS.  [Chap.  XIV. 

stating  the  fixtures  as  belonging  to  the  plaintiff  and  valued  to 
the  defendant.  The  umpire  made  evaluation,  appraised  the  fix- 
tures, and  returned  the  inventory,  with  the  appraisement,  stamp- 
ed. The  defendant,  by  letter,  requested  the  plaintiff's  auction- 
eer to  remove  the  fixtures,  which  was  done;  and  the  next  day 
he  wrote  to  the  plaintiff  that  he  would  attend  at  the  house,  and 
pay  the  amount  due  for  the  fixtures,  as  appraised.  The  first  and 
last  letters  were  signed  by  the  defendant,  but  the  first  only  was 
stamped.  Held,  the  inventory,  appraisement  and  letters  con- 
stituted together  a  sufiicient  memorandum  under  the  Slatute.(l) 

11.  But  where  there  is  a  prior  insufficient  or  unsigned  written 
contract,  the  plaintiff  cannot  avail  himself  of  subsequent  letters 
from  the  defendant,  recognizing  the  order  for  goods,  but  falsify- 
ing or  renouncing  and  disaffirming  the  terms  of  the  contract.(2) 

12.  After  a  defective  memorandum  of  a  contract  between  the 
plaintiff  and  defendant,  the  defendant  wrote  a  letter,  admitting 
the  order,  but  insisting  that  there  had  been  no  seasonable  deliv- 
ery, and  therefore  he  was  not  bound  by  the  contract.  Held, 
the  letter  did  not  aid  the  memorandum,  and  that  the  plaintiflT 
was  not  at  liberty  to  show  by  parol  evidence,  that  there  was  no 
agreement  to  deliver  within  a  certain  time. (3)* 

13.  The  defendant,  having  agreed  verbally  with  an  agent  of 
the  plaintiff,  to  transfer  certain  shares  in  a  manufacturing  cor- 
poration to  the  plaintiff;  wrote  to  his  own  agent,  directing  him 
to  transfer  them  into  the  plaintiff's  name,  and  send  the  certifi- 
cate to  him,  the  defendant.  The  plaintiff's  agent  afterwards 
agreed  in  writing,  to  pay  the  defendant  the  stipulated  price, 
when  the  latter  should   furnish   a  certificate.     Held,'  the  case 


(1)  Hemming  v.  Perry,  2  M.  &  P.  375. 

(2)  Chit,  on  Contr.  (Am.  Ed.)  315. 

(3)  Cooper  v.  Smith,  15  E.  103. 

*  The  above  case  was  recognized  in  Richards  v.  Porter,  (6  B.  &  C.  437),  where 
the  defendant  admitted  receipt  of  the  invoice,  but  alleged  that  it  was  not  seasonably 
sent.  In  Smith  v.  Surman,  (9  B.  &  C.  561),  the  letter  of  the  vendee  did  not  acknow- 
ledge the  absolute  agreement  described  in  that  of  the"  vendor,  but  stated  one  which 
was  conditional  as  to  the  quality.  Held,  this  was  a  discrepancy,  and  there  was  no 
sufiicient  memorandum. 


Sect.  III.]  Requisite*  of  a  writing  uNbEK  statute,         361 

showed  no  written  agreement  by  tlie  defendant,  and  that  parol 
evidence  of  his  contract  was  admissible. (  I) 

14.  It  is  held,  that  wijh  regard  to  the  form  of  signature,  re- 
quired by  the  statute,  where  a  bill  of  parcels  is  given,  m  which 
the  vendor's  name  is  printed,  and  the  vendee's  written  by  the 
vendor,  the  latter  is  bound.  (2)     (See  s.  7.) 

J5.  It  seems,  where  one  draws  up  an  agreement  with  his  own 
hand,  and  it  is  thus  expressed — "'  I,  A,  agree,  &-c."  or  "  A 
agrees,  &c."  ;  it  is  a  binding  contract,  though  not  signed  by 
him. (3) 

16.  It  seems,  a  signing  by  one  who  purports  to  be  a  party  is 
sufficient,  though  he  profess  to  sign  as  a  witness  (4) 

17.  The  making  of  a  mark  may  be  a  sufficient  signing,  where 
the  party  cannot  write,  and  is  identified.  But  an  unsigned  con- 
tract is  bad,  though  read  over  to  the  party  by  his  desire,  when 
written. (5) 

18.  A  letter  without  signature  is  no  sufficient  memorandum 
of  an  agreement  within  the  Statute  of  Frauds.  Thus  a  letter 
by  a  mother  to  her  son,  beginning  "  my  dear  Robert,"  ending 
"  your  affectionate  mother,"  and  containing  a  full  direction  of 
the  son's  name  and  residence,— is  no  sufficient  note  of  an  agree- 
ment.(G) 

19.  Questions  often  arise  in  relation  to  contracts  for  the  sale 
or  purchase  of  goods,  signed  by  agents.     (See  Auction.) 

20.  Where  a  commission  merchant  sells  goods  for  his  princi* 
pal,  and  the  vendee  accepts  a  bill  of  parcels,  stating  him  to  be 
the  purchaser  ;  such  bill  is  a  sufficient  memorandum  of  the 
agreement.  If  the  sale  is  for  and  on  account  of  the  principal, 
it  is  valid,  though  the  bill  does  not  show  his  name,  and  is  made 
out  in  the  name  of  the  agent.  Acceptance  of  the  bill  is  a  suffi- 
cient recognition  by  the  vendee  of  the  agent's  authority  to  sign. 
And,  the  bill  of  parcels  being  evidence  of  a  contract,  and  a  suffi- 

(1)  Tisdale  V.Harris,  20  Pick.  9. 

(2)  Schneider  v.  Norris,  2  M.  &  S.  286. 

(3)  Chit,  on  Conlr.  316,  7. 

(4)  Chit,  on  Contr.  317. 

(5)  lb.     Cooper  v.  Smith,  16  E.  103. 

(6)  Selby  V.  Srlbv,3  Mer.  2. 

46 


362  STATUTE  OF  FRAUDS.  [Chap.    XIV, 

cient  memorandum,  parol  evidence  is  not  admissible  substantial- 
ly to  vary  it  (1) 

21.  Where  a  broker,  employed  to  purchase  goods,  writes  with 
a  pencil  in  his  book  the  terms  in  the  body  of  the  memorandum, 
in  presence  of  both  parties  ;  this  is  sufficient  to  bind  the  bar- 
gain.(2) 

22.  A  broker,  through  whom  a  sale  of  goods  is  effected, 
though  first  employed  by  one  party,  becomes  agent  of  the  other 
also,  when  he  treats  with  him  ;  it  being  the  practice  of  brok- 
ers to  keep  books,  in  which  the  terms  of  the  contract  and 
names  of  the  parties  are  entered. (3) 

23.  A  broker  cannot  delegate  his  authority  without  the  as- 
sent of  the  principal.  Thus,  A  employed  a  broker  to  sell  goods. 
B,  wishing  to  purchase,  authorized  the  broker's  salesman  to  of- 
fer a  certain  price.  The  salesman  brought  the  parties  together, 
and  they  concluded  an  agreement  in  his  absence,  and  dictated 
the  terms  to  him.  He  made  an  entry,  accordingly,  in  the  book 
of  his  employer,  but  did  not  sign  it.  He  also  informed  the 
broker  of  the  facts,  who  ordered  his  clerk  to  enter  and  sign  the 
contract  in  his  book,  and  sent  a  sale-note,  signed  by  himself, 
to  A  ;  but  no  bought  note  was  sent  to  B.  Held,  an  insufficient 
contract  under  the  Statute. (4) 

24.  So,  where  he  does  not,  according  to  the  usual  course, 
deliver  to  the  respective  parties  bought  and  soW  no^es,  transcrib- 
ed from  the  books  and  signed  by  him.  The  entry  in  the  book 
is  properly  the  original,  and  should  therefore  be  signed.  The 
bought  and  sold  notes  should  be  mere  copies.  But  perfect  notes, 
signed  by  him,  and  delivered  to  the  parties,  may  constitute  a 
valid  contract,  though  there  be  no  entry  or  an  unsigned  one  in 
the  book. (5) 

25.  Where  a  broker,  by  mistake,  delivers   to  the  parties,  re- ^ 


(1)  Battuis  V.  Sellers,  5  Har.  &  J.  117. 

(2)  Clason  v.  Bailey,  14  John.  484.    Merrill  v.  Clason,  12.  102. 

(3)  Hinde  v.  Whitehouse,  7  E.  558.     HeyuKin  v.  Neale,  2  Camp,  337. 

(4)  Henderson  v.  Barnewall,  1  Y.  &  Jer.  387. 

(6)  Grant   v.  Fletcher,  5  B.  &  C.  437.    Goom  v.  Aflalo,  6  B.  tt  C.  117.     (See  2 
C.  &  P.  644.    4  Bing.  85.     12  Moo.  266. 


Sect.    III.  J      REQUISITES    Of    A     WRITING    UNDER    STATUTE.       363 

spectively,  sale-notes  which  differently  describe   the  goods  or 
the  terms  of  contract;  the  agreement  is  not  binding.(l) 

26.  A  broker,  employed  by  the  plaintiflf  to  sell  Petersburgh 
clean  hemp,  and  by  the  defendant  to  buy  hemp,  made  a  sale  to 
the  defendant,  and  by  mistake  gave  him  a  sale  note  of  Riga 
Rhine  hemp,  which  differed  in  quality  from  the  Petersburgh, 
and  to  the  plaintiff  a  note  of  sale  of  Petersburgh  clean  hemp. 
Held,  a  void  contract. (2) 

27.  It  seems,  a  material  variation  between  the  bought  and 
sold  notes,  delivered  to  the  parties,  cannot  be  corrected  or  aided 
by  an  entry  in  the  book  of  the  broker. (3) 

28.  A  bought  and  sold  note,  given  to  the  defendant,  mention- 
ed July  1  as  the  day  for  cash  with  discount,  at  the  end  of  both 
the  sold  and  bought  notes.  The  note  given  to  the  plaintiff  spe- 
cified this  day  only  at  the  end  of"  the  bought  note.  The  plain- 
tiff's note  was  all  written  on  one  sheet.  Held,  the  day  named  at 
the  end  of  the  bought  note  applied  also  to  the  contract  in  the 
sold  note;  and  therefore  the  plaintiff's  note  sufficiently  corres- 
ponded with  the  defendant's,  to  make  a  binding  contract. (4) 

29.  The  general  principle  of  the  law  of  agency,  that  a  sub- 
sequent ratification  of  an  agent's  doings  is  equivalent  to  a  pre- 
vious authority,  applies  to  the  signing  of  a  contract  under  the 
Statute  of  Frauds. 

30.  A,  without  authority,  purchased  goods  for  B  in  writing. 
B  afterwards  ratified  the  purchase.  Held  sufficient  under  the 
Statute  of  Frauds.  The  statute  leaves  it  to  the  common  law 
to  determine  how  an  agent  shall  be  authorized.  In  one  respect, 
a  ratification  is  more  satisfactory  than  a  previous  authority.  In 
the  former  case,  the  principal  knows  precisely  what  has  been 
done ;  while  in  the  latter  he  must  trust  to  the  agent. (5) 

31.  It  has  been  held,  that  a  broker,  who  signed  the  broker's 
note  upon  a  sale  of  corn,  was  the  agent  of  the  seller.     And  if 


(1)  Grant  v   Fletcher,  S  B.  &  C.  436. 

(2)  Thornton  v.  Kempster,  5  Taiin.  786.     (Sec  1  Star.  R.  140.     Holl,  172.) 

(3)  Thornton  r.  Meux,  Moo.  &  M.  43. 

(4)  Maclean  r.  Dunn,  4  Bing.  722. 

(5)  Maclean  r.  Dunn,  4  Bing.  722. 


361  STATUTE  OF  FiiAUDi?.  [Chap.   XIV. 

the  buyer  act  upon  the  note,  this  is  a  sufficient  adoption  of  the 
contract  to  make  it  binding  under  the  statute.  (1) 

32.  An  auctioneer  is  so  far  the  agent  of  both  parties,  though 
the  vendee  is  himself  only  an  agent,  that  the  auctioneer's  sign- 
ing the  name  of  the  vendee  or  his  agent  will  be  a  sufficient 
compliance  with  the  Statute  ;  unless  the  auctioneer's  authority 
be  revoked  by  a  retraction  in  his  hearing,  before  the  hammer  is 
knocked  down  or  the  signature  made. (2) 

33.  An  auctioneer,  like  any  other  agent  for  the  vendor,  need 
not  have  a  written  authority,  to  render  his  signature  sufficient 
under  the  Statute  of  Frauds. (3) 

34.  An  auctioneer's  signing  the  name  of  the  vendee  in  his 
catalogue  is  not  a  sufficient  compliance  with  the  Statute,  unless 
the  conditions  of  sale  are  annexed  to,  or  referred  to  by,  such 
catalogue. '4) 

35.  In  order  that  a  signing  by  an  agent  may  bind  a  party, 
such  agent  must  be  some  third  person,  not  the  other  party  to  the 
suit.  Thus,  where  an  auctioneer  wrote  the  name  of  the  vendee, 
by  his  authority,  opposite  to  the  lot  purchased,  and  an  action 
was  brought  against  the  vendee  in  the  name  of  the  auctioneer  ; 
held,  an  insufficient  signing  to  charge  the  defendant. (5)* 

36.  But  an  auctioneer's  clerk  is  a  third  person  authorized  to 
sign  for  the  vendee,  if  done  in  his  presence,  and  without  objec- 
tion ;  and  the  auctioneer  may  then  maintain  an  action  in  his 
own  name  (6) 

37.  Where  it  is  attempted  to  charge  a  party  by  a  contract  re- 
lating to  the  sale  of  goods,  through   some  indirect    admission 


( 1 )  Pal.  Pr.  &  Agent,  143,  2d  ed.     Maclean  v.  Dunn,  4  Binj;.  722. 

(2)  Chit,  on  Contr.  318,  9. 

(3)  Rucker  v.  Cammeyer,  1  Esp.  105.     Clinan  v.  Cooke,  1  Scii.  &  Lef.  22. 

(4)  Kenworthy  v.  Schofield,  2  B.  &  C.  945.     See  lb.  511. 

(5)  Farebrother  v.  Simmons,  5  B.  &.  Aid.  333.  (See  R.  &  M.  325.  2  Camp. 203. 
1  Nev.  &  M.  313.) 

(6)  Bird  V.  Boulter,  1  Nev.  &  M.  313. 

*  The  rule  that  a  memorandum  of  a  sale  of  goods,  made  by  an  agent  having  merely 
(tarol  authority,  satisfies  the  statute  of  frauds,  means  that  ho  should  be  an  auctioneer 
or  broker,  or  other  agent  of  both  parties  ;  not  the  mere  agent  of  the  vendee,  or  the 
agent  of  either  party  singly  ;  e.  g.  a  commission  merchant  authorized  to  buy  goods  in 
behalf  of  a  distant  correspondent.     Sewall  v.  Fitch,  8  Cow.  215. 


Sect.  III.]     REQUISITES  OF  A  WRITING    UNDER    STATUTE.  365 

subsequent  to  the  original  agreement,  such  admission  must  be 
taken  all  together,  so  as  to  give  hira  the  benefit  of  any  part  of  it 
which  is  favorable  to  himself. 

38.  A  agreed  with  B  to  sell  him  twenty  five  hogsheads  of  rum 
at  an  agreed  price,  and  to  furnish  the  casks.  Nothing  was  spe- 
cified as  to  the  size  of  the  casks,  but  the  usual  size  was  from 
108  to  112  gallons.  No  rum  was  delivered,  no  payment  made, 
nor  any  memorandum  given.  Nine  days  afterwards,  the  price 
of  the  article  having  in  the  mean  time  risen,  A  informed  B  that 
the  rum  was  ready  for  him,  presented  a  bill  of  parcels  of  twenty 
five  hogsheads,  averaging  97  gallons,  and  demanded  payment. 
B  paid  $1000  in  part  satisfaction,  remarked  that  the  casks  were 
small,  but  did  not  object  to  receiving  them,  and  the  next  day 
sent  for  and  received  the  rum.  Afterwards,  B  expressed  him- 
self as  dissatisfied  with  the  quality  of  the  rum,  and  A  thereupon 
offered  to  take  it  back  and  pay  the  expenses  incurred,  but  B 
did  not  accept  the  offer.  B  then  brings  an  action  to  recover  the 
amount  of  the  difference  of  price  in  the  number  of  gallons  defi- 
cient. Held,  the  action  could  not  be  maintained.  The  bill  of 
parcels  constituted  the  only  binding  contract,  and  the  plaintiff, 
in  availing  himself  of  this,  must  be  governed  strictly  by  its  pro- 
visions. He  could  not  be  permitted  to  accept  the  acknowledg- 
ment of  the  defendant,  made  by  a  specification  of  twenty  five 
hogsheads  as  ready  for  the  plaintiff,  as  a  performance  of  the 
agreement  confessed  by  the  defendant,  and  then  to  make  use  of 
the  same  act  as  evidence  to  prove  another  and  different  con- 
tract.(l) 

(1)   Whitwell  V.  Wyer,  11  Mass.  6. 


INDEX. 


ABANDONED  GOODS,  sale  of,  26 

ABSOLUTE  AND  CONDITIONAL  SALES,  distinction  as 
to  delivery,  107 

distinction  as  to  rescinding,  279 
ABSOLUTE   BILL  OF  SALE,  may  be   good    as  a  mortgage, 

292.  294 
ACCEPTANCE  OF  PART  OF  GOODS  SOLD,  95 

not  proved  by  a  mortgage  from  the  vendee,  132  n. 

nature,  necessity  and  effect  of,  135 
ACCESSION  TO  THING  SOLD,  vendee  may  claim  by,  12. 
122 

effect  of,  28 
ACCOUNT  ANNEXED,  suit  on,  326  and  n. 

is  assignable,  340  and  n.  346.  348.  350 
ACT  OF  LAW,  sale  by,  1 1 
ACT  OF  BANKRUPTCY,  what,  297 
ACTION,  for  goods  sold  and  delivered,  314 

for  money  had  and  received,  324 

upon  assigned  demand,  form  of,  342,  343.  351 

vendor  cannot  have  for  the  goods,  against  a  stranger,  6 

upon  a  warranty,  251.  254 

by  vendee,  for  fraud,  286 
ACTUAL  AND    CONSTRUCTIVE    DELIVERY,   distinc- 
tion, 76.  194 


3G8  INDEX. 

ACTUAL    AND    CONSTRUCTIVE    FRAUD,  distinction, 

292.  293  and  n. 
ADMINISTRATORS,  &c. ;  sale  by,  65 
ADMISSION  OF  AGENT,  56,  57 

must  be  taken  all  together,  364,  5 
ADULTERY  OF  WIFE,  effect  on  husband's  liability,  43,  44, 

45 
ADVERSE,  stoppage  in  transitu  must  be,  190.  209 

title,  no  defence  by  vendee,  336 
ADVERTISEMENT,  warranty  by,  232 
AFFIRMATION  OF  SALE  TO  AGENT,  54,  55 

whether  necessary  to  warranty  of  title,  258  n. 

of  title,  suit  upon,  327 
AGENT,  &c.,  sales  by  and  to,  51.  316  n.  326  n. 

when  personally  responsible,  59.  241.  242 

whether  he  may  charge  the  principal  as  a  purchaser,  60,  1 

of  trustee,  cannot  purchase,  65 
the  law,  sale  by,  65 
vendee,  possession  of,  dispenses  with  delivery,  86 

when  an  auctioneer  is  the,  of  both  parties,  160.  164 

and   carrier,   distinction   between,   as  to   delivery,  202, 
212  n. 

rights  of,  as  to  stoppage  in  transitu,  208 

may  sell  by  sample,  242 

warranty  by,  256 

of  vendee,  vendor  may  sometimes  act  as,  271 

signing  of  contract  by,  whether  sufficient,  361 
ALIEN  ENEMY,  stoppage  in  transitu  in  case  of,  221 
ALIMONY,  effect  of  on  sale,  46 

ALTERATION  IN  THING  SOLD,  by  vendee's  order,  6 
ALTERNATIVE  CONTRACT,  must  be  so  alleged,  332 
AMBIGUITY,  evidence  to  explain,  41 
AMENDMENT  OF  OFFICER'S  RETURN,  67 
AMOUNT  OF  DAMAGES,  in  case  of  sale,  336  &  n. 
APPROVED  BILL,  payment  by,  150 
ARRIVE,  meaning  of  the  word  in  a  contract,  134 
ARRIVAL  OF  GOODS,  when  a  condition  of  sale,  21,  22 

promise  to  deliver  upon,  273 


INDEX.  369 

ASSIGNMENT  OF  BILL  OF  LADING,  effect  of,  213  and  n. 
ASSIGNMENT  FOR  CREDITORS,  what  avoids,  293 
ASSIGNMENT  OF  CHOSES  IN  ACTION,  338 
ASSUMPSIT,  when   it   lies   in  case  of  tort,   100  n.   324,  325 
and  n. 

upon  a  warranty,  255 
ATTACHMENT,  estoppel  by,  11 

sale  in  case  of — delivery,  79,  80 

stoppage  in  transitu  paramount  to,  195 

fraudulent,  302  n. 
ATTORNMENT  OF  A  DEPOSITARY  TO  THE  VEN- 
DEE, 81.  83.  89.  93 
AUCTION,  sales  by,  157 

no  warranty  in,  247 
Statute  of  Frauds  applies  to,  358 
AUCTIONEER,  is  like  other  selling  agents,  51  u. 

rights,  &c.  of,  162 

may  sue  the  purchaser,  165.  167 

signing  of  contract  by,  364 
AUTHORITY  OF  AGENT,  form  of,  53 

revocation  of,  57 

delegation  of,  362 

B. 

BAILMENT  and  sale,  distinction,  15 

BAILEE,  sale  by.  24 

BALANCE  OF  ACCOUNT,  assignable,  340.  346.  350 

BALES,  sale  of  goods  in— warranty,  226.  246 

BANISHMENT  OF  HUSBAND,  effect  on  sale  to  wife,  46 

BANKRUPT,  goods  "  in  the  order  and  disposition  of,"  81.  208 

law  not  adopted  here,  106  n.  127 
BANKRUPTCY  OF  PARTNER,  sale  after,  71 

after  sale  without  delivery,  110,  111 

rescinding  of  sale  in  case  of,  264 

sale  in  contemplation  of,  297 
BARTER  BY  FACTOR,  55 
BARTER  AND  SALE,  distinction,  316 
47 


370  INDEX. 

BEXWELL  V.  CHRISTIE,  comments  upon,  170.  172,  173 
BEZOAR  STONE,  case  of,  237  and  n. 
BID  AT  AUCTION,  retracting  of,  159.  278 

assignable,  343 
BILL  OF  LADING,  not  necessary  to  sale,  4 

transfer  by,  87 

may  operate  by  relation,  89 

effect  on  stoppage  in  transitu,  178  n.  205.  211 

shipmaster,  190.  202 

pledge  of  by  factor,  209 
BILL  OF  PARCELS,  effect  on  stoppage  in  transitu,  218 

does  not  exclude  parol  proof,  245 

whether  a  memorandum,  within  the  St.  of  Frauds,  359 

is  a  mere  contract,  121 
BILL  OF  SALE,  not  necessary  to  a  sale,  4 

assignment  of,  343 

unnecessary  to  pass  ships,  128  n. 

and  bill  of  parcels,  distinction,  110 
BILLS  AND  NOTES,  payment  of  price  by,  145.  315,  316. 
320 

drawing  of,  what  is  a,  147 

on  time,  when  a  suit  lies  for  the  price  immediately,  152. 
315,  316.  320 

payment  by,  effect  on  stoppage  in  transitu,  220 

assignment  of,  345 
BLIND  HORSE,  sale  of,  230.  239.  288  n. 
BONA  FIDE  CONVEYANCE,  what,  290.  291 
BOND  OF  AUCTIONEER,  how  forfeited,  163 

for  price,  whether  defect  of  quality  is  a  defence  against 
335 

assignable,  343 
BOOK-ACCOUNT,  assignable,  340  and  n.  348 
BOUGHT  AND  SOLD  NOTES,  sales  by,  63,  64.  362  363 
BRAND  UPON  THING  SOLD,  effect  as  to  warranty'  228 

250 
BREACH  OF  WARRANTY,  what,  238 
BROKERS,  &c.,  sales  by  and  to,  51.  56 

cannot  sell  on  credit,  55 


INDEX. 


371 


BROKERS  AND  FACTORS,  distinction,  02 
BUILDING  MATERIALS,  pass  by  accession,  28.  30 
BULK  OF  GOODS  SOLD    BY  SAMPLE,   warranty   as  to, 

246 
BULKY  ARTICLES,  sale  of  without  delivery,  114 
BY-BIDDERS  AT  AUCTION,  170 


CAPTAIN  OF  SHIP,  bills  of  lading  from,  212 
CAPTURED  GOODS,  sale  of,  25 
CARRIER,  sale  by,  24 

delivery  to,  whether  it  passes  a  title,  102 

duty  of  vendor  as  to  entry,  &/C.,  134 
effect  on  right  of  stoppage  m  transitu,  202,  230 
lien  of,  effect  on  stoppage  in  transitu,  204.  206 
CAVEAT  EMPTOR,  25.  224  n.  242.  246.  248.  258  n. 
CAVEAT  VENDITOR,  maxim  of  civil  law,  223,  n. 
CERTIFICATE,  whether  proof  of  sale,  4 
by  vendor,  of  holding  in  storage,  93 
CHAMFER  TY,  avoids  a  contract,  352 
CHANCERY  DECREE,  sale  under,  66 

assignable,  343 
CHEATING,  what,  287 
CHECK,  when  payment,  147,  148 
CHOSES  IN  ACTION,  assignment  of,  12.  338 
and  possession,  distinction,  26.  33 
purchaser  of,  cannot  sue  in  his  own  name,  80 
CIVIL  LAW,  as  to  delivery,  76  n. 

as  to  warranty,  223 
COMMISSION,  CONSIGNMENT  ON,  is  no  sale,  316  andn. 
COMMON  AND  CIVIL  LAW  AS  TO  WARRANTY,  223 
COMPENSATION,  AGREEMENT  FOR,  in  auction  sales, 

167 
CONCEALMENT,  in  sale  between  partners,  72 
as  to  quality  of  thing  sold,  224.  283 
of  insolvency,  283 
CONCURRENT  JURISDICTION,  of  law  and  Equity,  in  case 
of  fraud,  282  and  n.  283  n. 


372  INDEX. 

CONDITION  OF  SALE,  waiver  of,  88.  320 

auction,  not  opep  to  denial,  169 
and  lien,  distinction,  178 
of  liberty  to  return  goods  sold,  274,  275 
payment  prevents  a  complete  sale,  319 
averment  of  performance  of,  327 
CONDITIONAL  SALE,  18 

stoppage  in  transitu  does  not  create,  188 
CONDITIONAL  DELIVERY,  97.  104 
CONDITIONAL  AND  ABSOLUTE  SALES,  distinction  as 
to  delivery,  107 

rescinding,  279 
and  mortgage,  distinction,  ib. 
CONFESSION  OF  AGENT,  56,  57 

CONSIDERATION,   necessary  to   assignment   of  bill  of  lad- 
ing 
of  warranty,  256 

what  sufficient  against  creditors,  292 
in  part  illegal — effect,  311 

assignment  of  a  chose  in  action,  is  sufficient,  353 
proof  of,  under  St.  of  Frauds,  358 
CONSIGNEE,  what  expenses  he  may  incur,  55 
CONSIGNMENT  AND  SALE,  distinction,  17  {see  Bailment ,) 
322 
by  debtor  to  creditor,  no  stoppage  in  transitu,  220 
CONSPIRACY  TO  DEFRAUD,  what,  302  n. 
CONSTRUCTION  QF  SALE,  4.  26 
conditional  contracts,  18 
St.  of  Frauds,  355 
CONSTRUCTIVE  DELIVERY,  76 

effect  of,  on  stoppage  in  transitu,  190.  194 
CONSTRUCTIVE    AND  ACTUAL    DELIVERY,   distinc- 
tion, 194 
CONSTRUCTIVE    AND    ACTUAL    FRAUD,    distinction, 

292,  293  and  n. 
CONTEMPLATION  OF  BANKRUPTCY,  sale  made  in,  297 
CONTINGENT  DEBT,  may  be  assigned,  12.  340.  347 
CONTINGENT  PROPERTY,  sale  of,  310 


INDEX.  373 

CONTRACT,  what  necessary  to  close  a,  13 

to  sell,  and  sale,  distinction,  2G 

whether  lien  depends  on,  177.  185  n. 

of  sale,  what,  356,  357 
CONVERSION,  fraudulent  purchase  is  a,  285 
CONVEYANCE,  what  was  under  U.  S.  bankrupt  law,  299 
CORPORAL  TOUCH,  not  necessary  to  exercise  or  end  right 

of  stoppage  in  transitu,  190  and  n. 
CORPORATOR,  fraudulent  sale  by,  296 
COTTON,  SALE  OF,  whether  a  warranty,  242.  246 
COUNTERMAND  OF  GOODS,  effect  on  stoppage  in  transi- 
tu, 204 
COUNTING  OF  GOODS,  when  necessary  to  pass  a  title,  119, 

120 
COUNTS  IN  DECLARATION,  effect  of  proving   but  one, 

327 
COVENANT,  assignable,  343,  344 
CREDIT,  sale  on,  3.  151 

by  agent,  55 

given  to  agent,  whether  principal  liable,  57. 

to  whom  given  for  supplies  to  shi^js,  60 

does  not  make  a  sale  conditional,  88 

no-lien  in  case  of,   183 

when  vendor  bound  by,  321,  322 
CREDITORS  OF  VENDEE,  fraud  against,  18.  20.  302  n. 

delivery  necessary  in  relation  to,  75.  106 

sale  to,  successively,  113 

of  vendor,  fraud  against,  289 
CROPS,  lien  upon,  179,  180 
CUMBERSOME  ARTICLES,  delivery  of  unnecessary,  76. 

78 
CURRENT  AND  REASONABLE  PRICE,  distinction,  145 
CUSTOM  OF  WARRANTY,  256 

D. 

DAMAGES,  recovery  of,  whether  defendant  gains  a  title  to  the 
property,  11 


374  INDEX. 

DAMAGES— (eonfimied.) 

in  case  of  defective  quality,  40 
warranty,  258 

amount  of,  336  and  n. 

pass  by  assignment  of  judgment,  342 
"DEBITUM  IN  PR/ESENTI,  SOLVENDUM,"  &-c.  31 
DEBT,  contingent  may  be  assigned,  12 
DEBTOR,  sale  by,  to  creditor,  150.  220 
DECEIT,  action  for,  255 

rescinding  of  sale  for,  273 

effect  of,  upon  a  suit  for  the  price,  334  and  n. 
DECLARATIONS,  of  auctioneer,  when  inadmissible,  169 

forms  of,  326 
DECREE,  sale  under,  66 

in  Chancery,  assignable,  343 
DEED,  not  necessary  to  a  sale,  3,  4,  5 

passes  chattels  without  delivery,  127 
DEFAULT,  whether  defendant  gains  a  title  to  the  property  by, 

11 
DEFECT  IN  THING  SOLD,  whether  a  defence  to  a  suit  for 

the  price,  334  and  n. 
DEFENCES  IN    SUITS  UPON    THE    CONTRACT    OF 

SALE,  334 
DELEGATION  OF  AUTHORITY  BY  AGENT,  53.  362 
DELIVERY,  75 

whether  essential  to  a  sale,  3,  4,  5.  127 

in  case  of  exchange,  9 

takes  a  sale  out  of  the  Statute  of  Frauds,  16 

on  condition,  18.  97 

necessity  of,  26 

of  order,  passes  a  title,  81,  82,  83 

for  transportation,  passes  the  property,  102.  108 

with  a  conditional  agreement  to  take  back,  121 

actual  and  constructive,  distinction,  122,  123,  124.  194 

to  one  of  two  purchasers  gives  him  the  prior  title,  125 

obtained  by  fraud,  130 

authorizes  the  vendee  to  take  the  goods,  though  fraudu- 
lent, 130 


INDEX.  375 

BELIYERY— {continued. ) 

place  of,  ib. 

to  carrier,  stoppage  in  transitu,  118 

destroys  vendor's  lien,  180 

what,  destroys  right  of  stoppage  in  transitu,  190 

of  order,  effect  on  stoppage  i/i  transitu,  217,  218 

note,  effect  on  stoppage  in  transitu,  218 

vendor  when  excused  from,  273 

whether  a  chose  in  action  may  be  assigned  by,  344 
DEMAND,  when  necessary,  132.  313.  321.  327,  328.  332 

effect  of,  327 
DEPOSIT,  by  auction  purchaser,  163 
DEPOSITARY,  assignment  of  note  in  the  hands  of,  346 
DESCRIPTION,  whether  it  implies  a  warranty,  236.  243.  245 
DESTINATION,  whether  goods  must  reach   their,  to  end  the 

right  of  stoppage,  &c.  198.  201 
DEVIATION  FROM  CONTRACT,  avoids  a  sale,  10 
DISAFFIRMANCE  OF  CONTRACT,  form  of  action  after, 

320 
DISCHARGE  OF  DEBT,  after  assignment,  342.  348.  353 
DISCONTINUANCE  OF  SUIT,  when  not  allowed,  353 
DISEASE,  what   is  a  breach  of  warranty  in   horses,  239,  240 

and  n. 
DISHONOR  OF  BILLS,  6lc.  whether  it   revives  a  claim  for 
the  price,  146 

does  not  revive  the  vendor's  lien,  183 
DIVORCE,  sale  after,  46 
DOCK-BOOKS,  transfer  in,  is  a  delivery,  84 
DRAWING  OF  BILL,  what  is,  147 
DURESS,  51 
DUTCH  AUCTION,  172 
DUTIES,  AUCTION,  when  incurred,  153 

who  liable  for,  162 

detention  for,  effect  on  stoppage  in  transitu,  39S.  207 

E. 
EARNEST,  14 


376  INDEX. 

EDWARDS  V.  HARDEN,  case  of,  criticised,  108 
EFFECT  OF  RESCINDING  A  SALE,  279 
ELECTION,  as  to  goods  bought,  35,  36,  37 

place  of  delivery,  132,  133 
ELOPEMENT  OF  WIFE,  sale  after,  45 
EQUITY,  right  of  stoppage  in  transitu  in,  189 

assignee  may  sue  in  his  own  name  in,  351 
ESTOPPEL   OF    VENDOR    BY  A    CERTIFICATE    OF 

STORAGE,  93 
EVICTION,  proof  of,  in  suit  upon  warranty,  257 

suit  for,  327 
EVIDENCE  IN  CASE  OF  WARRANTY,  256 
EXCESS   OF    PROPERTY    CONVEYED    OVER    THE 

DEBT,  whether  proof  of  fraud,  292.  294 
EXCHANGE,  8 

of  securities,  differs  from  sale  of  goods,  10 

form  of  action,  in  case  of,  317,  318.  321 
EXECUTORS,  &.C.,  sale  by,  65 

suits  by  and  against,  upon  assigned  demands,  357 
EXECUTORY  AND  EXECUTED  SALES,  26 
EXECUTORY  AND  EXECUTED  CONTRACTS,  distinc- 
tion, 120.  356 
EXECUTORY  CONTRACT,  requires  acceptance  of  goods, 

142.  145 
EXECUTION  SALE,  66 

does  not  require  delivery,  112 

no  warranty  in,  260 

against  vendee,  stoppage  in  transitu  paramount  to,  195 

goods  not  liable  upon,  after  a  rescinding,  279 

assignment  of,  342 
EXPRESS  AND  IMPLIED  TRUST,  distinction,  291 

promise  not  necessary  to  a  suit  for  goods  sold,  &c. ,  314 


FACTORS,  &,c.,  sales  by  and  to,  51 
when  personally  responsible,  59 


INDKX.  377 

FACTORS  AND  BROKERS,  distinction,  62 

rights  of,  as  to  stoppage  in  transitu,  208 
FAIR,  sale  in  a,  24 

held  on  Sunday,  303  n. 
FALSE  REPRESENTATIONS,  may  be  prior  to  sale,  269 
FALSE  PRETENCES  AND  TOKENS,  goods  obtained  by, 

269.  287 
FALSE  RECOMMENDATION,  suit  for,  286 
FATHER,  liability  of,  for  child,  48 

FELONY  AND  FRAUD  COMPARED,  283  n. ;  285,  286  ' 
FEME  COVERT,  contract  of,  43 
FOREIGN  COUNTRY,  sale  in,  25,  26 
FORMS  OF  DECLARING  UPON  CONTRACTS  OF  SALE, 

326 
FORMS  OF  ASSIGNING  CHOSES  IN  ACTION,  344 
FORMAL  DELIVERY,  unnecessary,  75 
FORWARDING  OF  GOODS,  a  delivery,  102.  108 
FRAUD,  and  felony,  compared,  283  n.  285,  286 

against  creditors,  &c.  289.  302  n. 

and  illegality,  distinction,  296 

in  other  transactions,  not  evidence,  ib. 

against  the  bankrupt  law,  297 

delivery  obtained  by,  18.  130 

makes  a  parent  liable  for  his  child,  48 

of  agent,  61 
partner,  70 

between  partners,  what,  72 

against  creditors,  want  of  delivery  indicates,   106 

in  giving  a  worthless  check,  148 

in  case  of  sale  on  credit,  time  of  suit,  151 

cannot  be  proved,  unless  alleged,  228 

rescinding  of  sale  for,  269 

between  the  parties  to  a  sale,  avoids  it,  282 

of  third  person,  who  shall  suffer  by,  302 

vendee,  when  it  authorizes  a  euit  for   goods  sold,  &,c. 

320,  321 
vendor,  effect  upon  a  suit  for  the  price,  334  and  n. 
FRAUDULENT  CONVEYANCE,  75.  106  289 
48 


378  INDEX. 

FRAUDULENT  INTENT,  question  how  tried,  114 
FRAUDULENT  REPRESENTATIONS,  goods  obtained  by, 

256 
FRAUDULENT  ATTACHMENT,  302  n. 
FRAUDULENT  CONSPIRACY,  what,  ib, 
FRAUDS,  STATUTE  OF,  354 

whether  applicable  to  auctions,  160 
FREIGHT,  assignment  of,  347 
FUTURE  PROPERTY,  sale  of,  11.  32.  3J0.  356 


G. 


GAMING,  how  far  a  contract  connected  with  is  void,  305 
GENERAL  AND  SPECIAL  AGENTS,  52.  56 
GENERAL  CLAUSES,  -prima  facie  fraudulent,  290 
GOODS  BARGAINED  AND  SOLD,  action  for,  36.  88.  117. 
188.  322 
what  acceptance  proves,  138 
GOODS  SOLD  AND  DELIVERED,  action  for,  36.  314.  335, 
336 
when  fraud  creates  a  liability  for,  48 
suit  for,  lies  after  a  bill  of  lading  given,  89 
may  lie  though  the  vendor  retain  possession,  ib. 
whether  it  lies  after  delivery  to  carrier,  102.  105 
does  not  lie,  where  any  thing  remains  to  be  done  by  the 

vendor,  117.  119 
what  acceptance  proves,  138 
suit  for,  in  case  of  credit,  152 
whether  in  case  of  tort,  325  n.  ^ 

GOODS,  what  are,  357 

GOVERNMENT  AGENTS,  contracts  of,  58 
GRAND  BILL  OF  SALE,  of  ship,  128 
GUARANTY,  suit  upon,  315  n. 

H. 

HEMP,  no  implied  warranty  in  sale  of,  226 


INDEX.  379 

HORSE,  warranty  of,  238,  239 

HUSBAND  AND  WIFE,  sale  in  case  of,  43.  315  n. 


IDIOTS,  contracts  of,  50 

ILLEGALITY  AND  FRAUD,  distinction,  296 

sales  void  for,  303.  352 

of  consideration,  311 
IMMORAL  SALES,  309 

IMPLIED  CONTRACT,  from  possession  of  goods,  9 
IMPLIED  AUTHORITY,  of  agent,  53 

IMPLIED  WARRANTY,  civil  and  common  law  respecting, 
223 

of  title,  258 
IMPLIED  PROMISE,  suit  for  goods  sold,  &c.  lies  upon,  314 
INDORSEMENT,  of  wharfinger's  receipt,  83 

of  bill  of  lading,  87.  209 
INFANTS,  sales  by  and  to,  47.  349 
IN  PARI  DELICTO,— m^xim  when  inapplicable,  308 
INSIMUL  COMPUTASSENT,  is  an   estoppel,  148 
INSOLVENCY  OF  VENDEE,  notice  of,  prevents  stoppage  m 
transitu,  197 

whether  it  avoids  the  sale,  283 
INSPECTION  OF  GOODS  SOLD,  when  necessary  to  pass 
a  title,  119 

sale  on,  no  warranty,  231.  242 
INSPECTION  OF  PROVISIONS,  whether  a  warranty  in  case 

of,  248 
INSURANCE,  policy  of,  assignable,  340 
INTENT,  FRAUDULENT,  question  how  tried,  114.  287 
INTEREST,  upon  auction  deposit,  165 
INTERMEDIATE  PORT,  arrival  at— stoppage  in  transitu, 

193.  198,  199.  204.  207.  211 
INVOICE,  whether  evidence  of  sale,  4 

delivery  of,  84.  88 

effect  of,  on  stoppage  in  transitu,  203.  217 
IRREGULARITY,  in  execution  sale,  effect  of,  67 


380  INDEX. 


JOINT  PURCHASE,  what  is,  71 

JOINT  POSSESSION  OF  VENDOR  AND  VENDEE,  ef- 
fect of,  11-2 

JUDGMENT,  whether  a  title  to  chattels  passes  by,  U 
for  price,  effect  upon  vendor's  lien,  184 
is  assignable,  341,  2.  4,  5 

JUDICIAL  SALES,  66 

no  warranty  in,  247 

JURISDICTION,  of  law  and  Equity  in  case  of  fraud,  282  and 
n.  ;  293  n. 

K. 

KEEL  OF  SHIP,  sale  of,  28.  30 

KEEPING  BY  VENDOR  OF  GOODS  SOLD,  vendee  bound 

to  pay  for,  94  n. 
KEEPING  OF  HORSE,  when  vendor  is  liable  for,  280 
KEY,  delivery  of,  76.  84.  96 

KIND  OF  ARTICLE  SOLD,  implied  warranty  of, 
KING,  form  of  suit  by,  352 
KING'S  WAREHOUSE,  arrival  at,  effect  on  stoppage  in  tran^ 

situ,  198.  207 


LEASE,,  taking  of,  is  a  delivery,  85 

of  house,  effect  of,  as  a  delivery  of  furniture,  108.  110 
LESSEE,  sale  to,  does  not  require  delivery,  85,  86 
LETTER  OF  ATTORNEY,  whether  an  assignment,  345 

when  a  memorandum  under  the  St.  of  Frauds,  359,  360 
and  n. 
LETTERS,  proposals  by,  13,  14 
LICENSE  AND  HYPOTHECATION,  distinction,  178 

to  alien,  effect  upon  stoppage  in  transitu,  221 
LIEN,  of  vendor  on  property  sold,  35.  78.  83,  84.  176, 

possession  necessary  to,  35 


INDEX.  381 

LIEN — (continued.) 

not  attachable,  35 

may  cease,  notwithstanding  continued  possession,  93 

ceases  by  constructive  delivery,  96 

continuance  of,  prevents  a  legal  acceptance,  142 

and  condition,  distinction,  178 

and  stoppage  in  transitu,  distinction,  188 

of  carrier,  effect  on  stoppage  in  transitu,  204 

consignee's  creditors,  stoppage  in  transitu  is  paramount 

to,  195.  206 
of  factor,  208  and  n.  210 
none,  in  sale  on  credit,  220 
of  corporation,  upon  shares  of  members,  340,  1 

LIClUIDS,  peculiarity  in  the  sale  of,  115 

LOTTERY  TICKETS,  sale  of,  308  and  n.  311 
form  of  suit  for,  327  n. 

LUNATICS,  contracts  of,  50 

M. 

MANUFACTURE  TO  ORDER,  no  sale,  10 
MANUFACTUED  ARTICLE,  sale  of,  27.  356,  7 

warranty  of,  230.  242 
MARK,  whether  a  signing  within  the  St.  of  Frauds,  361 
MARKE  T  O  VER  T,  23 

sale  in,  by  factor,  55 
MARKING,  whether  a  delivery,  78 

effect  upon  stoppage  in  transitu,  194.  219 
MARRIED  WOMEN,  sales  by  and  to,  43 
MARRIAGE  SETTLEMENTS,  delivery  not  necessary  in,  291 
MASTER,  power  of  servant  to  bind,  53 

of  ship,  liability  of,  59,  60 
sale  by,  abroad,  130 
MEASURE  OF  DAMAGES,  336 

MEASUREMENT  OF  GOODS,  when  necessary  to  pass  a  U-. 
tie,  117.  123.  195 

not  an  acceptance,  139 
MEMBER  OF  CORPORATION,  sale  by,  296 


382  INDEX. 

MEMORANDUM,  what  is  a,  under  St.  of  Frauds,  35S 

MERCHANDISE,  what,  357 

MERCHANTABLE  PRICE,  does  not  imply  warranty,  225 

whether  a  warranty  that  articles  sold  are,  225.  230,  243 
MIDDLE-MAN,  and  agent,   distinction  as  to  delivery,   202. 

212  n. 
MISCONDUCT  OF  WIFE,  effect  on  husband's  liability,  43, 

44,  45 
MISJOINDER  OF  CONTRACT,  and  tort,  255 
MISTAKE,  no  ground  for  avoiding  a  sale,  284 
MISREPRESENTATION,  of  partner,  70 

in  sale  at  auction,  167 

whether  vendor  liable  for,  224.  227 

by  vendee,  283 
MITIGATION  OF  DAMAGES,  for  defect  in  thing  sold,  334 

and  n. 
MONEY,  has  no  ear-mark,  64 

paid,  suit  for,  94  n. 

right  of  stopping  m  transitu,  221 

had  and  received,  suit  for  in  case  of  sale,  229.  277.  324 
MORALITY,  contracts  opposed  to  are  void,  309 
MORTGAGE  AND  CONDITIONAL  SALE,  distinction,  18 

whether  a  contract  of  sale,  22 

form  of,  23 

necessity  of  delivery  in  case  of,  107.  113 

recording  of,  107  n. 

parol  proof  of,  1 10.  292.  4 

when  it  is  a  payment  for  goods  sold,  149 

absolute  bill  of  sale  may  operate  as,  292.  4 
MUNIMENTS,  possession  of,  authorizes  a  sale,  63 

N. 

NAME,  writing  of  upon  thing  sold — effect,  95 
NECESSARIES  TO  WIFE,  husband  liable  for,  43,  44,  45 
NECESSARIES  TO  INFANT,  liability  for,  47 
NEMO  PLUS  JURIS  IN  ALIUM,  &c.  25 
NET  WEIGHT,  sale  by,  39,  40 
NOMINAL  DAMAGES,  336  and  h. 


INDEX. 


383 


NOTE,  giving  of,  whether  payment,  101 

given  by  vendee  for  too  large  a  sum,  suit  to  recover  the 

excess,  326  n. 
for  price,  whether  defect  in  the  thing  sold  is  a  defence 

against,  334  and  n. 
assignment  of,  346.  8 
NOTICE,  of  terms  of  sale,  40 

to  a  creditor  of  sale  without  delivery,  114 

of  place  of  delivery,  when  necessary,  132,  133 

to  a  carrier,  is  a  stoppage  in  transitu,  190  n. 

of  vendee's  insolvency,  defeats  stoppage  in  transitu,  197 

what  necessary  to  charge  an  indorsee  of  bill  of  lading, 

214.  216 
of  trust,  makes  a  sale  good  against  creditors,  291 
suit,  in  case  o(  eviction,  327 
assignment  of  chose  in  action,  348 

O. 

OFFICER,  sale  by,  67 

OFFSET,  for  price  of  goods,  150 

OPERATION  OF  LAW,  sale  by,  11 

OPINION,  expression  of,  is  no  warranty,  227.  232  and  n.  235. 
238 

ORDER,  for  several  articles,  7 

in  drawee's  hands,  proves  a  sale,  8 
upon  a  depositary,  passes  the  title,  81 
and  disposition  of  bankrupt,  goods  in,  208 
deviation  from,  justifies  a  rescinding,  274 
goods  made  to,  what  proof  necessary  in  case  of,  276 
whether  an  assignment,  346,  7 
OWNER  OF  SHIP,  liability  of,  59,  60 


PACKER,  has  no  authority  to  sell,  64 

PARENT  AND  CHILD,  respective  liabilities  of,  48 

PAROL  WARRANTY,  when  void,  236 


dS4  INDEX. 

PAROL  EVIDENCE,  cannot  control  receipt,  16 

of  condition,  18,  19.  110 

to  amend  an  officer's  return,  67,  68 

as  to  time  of  delivery,  131 

of  price,  when  inadmissible,  145 

in  relation  to  warranty,  237.  243.  256 

rule  as  to,  and  Statute  of  Frauds — distinction,  355 

when  inadmissible,  under  St.  of  Frauds,  360,  1,  2 
PART-DELIVERY,  94 

effect  upon  claim  for  price,  7.  130,  131 

when  no  delivery  of  the  whole,  84 

no  waiver  of  condition,  97 

passes  property,  only  where  there  is  a  change  of  posses- 
sion, 118 

whether  it  destroys  the  vendor's  lien,  180.  182.  184  and 
n.  186.  191  n. 

effect  upon  stoppage  in  transitu,  191.  200.  214 
PART-EXECUTION,  Statute  of  Frauds  does  not  apply  in  case 
of,  16 

when  it  gives  a  right  of  action,  320 
PART-OWNERS  OF  SHIP,  liability  of,  60 

sale  by,  70 

between,  72 
PART-PAYMENT,  effect  upon  vendor's  lien,  182  n. 

stoppage  in  transitu,  190.  220 
PARTIES  TO  SALES,  42 
PARTNERS,  sale  by  and  to,  68 
PARTNERSHIP  AND  SUB-SALE,  distinction,  71 
PART-OWNERS,  lien  between,  185 
PATENT  DEFECTS,  no  warranty  against,  230.  239 

sale  of,  when  void,  288 
PAUPER,  a  town  may  assign,  343 
PAYMENT,  whether  necessary  to  sale,  3,  4,  5.  319 

of  earnest,  14 

fixing  time  of,  does  not  raise  a  condition,  88 

whether  giving  a  note  is,  101.  184  and  n. 

of  price,  144,  145 

by  bills,  &c.  effect  upon  stoppage  tn  transitu,  220 


INDEX.  885 

V  AY  MENT— {continued.) 

of  a  debt,  and  sale— distinction,  317.  336 
after  assignment,  350 
PENALTY,  whether  a  contract  is  avoided  by  the  imposing  of 

a,  303 
PICTURE,  warranty  in  sale  of,  Q38 
PLACE  OF  DELIVERY,  130.  132 
PLEDGE,  of  bill  oflading, 

effect  upon  stoppage  in  transitu,  219.  275 
POLICY  OF  INSURANCE,  lien  on,  178  n. 

is  assignable,  340 
PONDEROUS  GOODS,  delivery  of,  unnecessary,  76.  78 
POSSESSION,  purchase  implied  from,  9 

by  vendor,  whether  fraudulent,  29.  107.  290,  I 

whether  necessary  to  charge  one  as  trustee,  31 

necessary  to  lien,  35.  177,  178.  185  n.  201  and  n. 

of  muniments,  authorizes  a  sale,  63 

of  vendee,  dispenses  with  delivery,  85.  94 

vendor,  sale  may  be  good  notwithstanding,  92 
conditional  vendee  for  a  special  purpose,  101  and  o. 

taken  by  one  of  two  vendees,  113,  114.  125 

what  necessary  to  trespass,  121 

by  vendee,  before  the  journey's  end, — effect  upon  stop- 
page   in  transitu ^  201 

implies  warranty  of  title,  258  and  o. 
POSSIBILITY,  sale  of,  12 
POWER,  revocation  of,  57 

PRESUMPTION  OF  SALE,  in  case  of  tort,  326 
PRICE,  144 

no  action  for,  in  case  of  fraud,  282 

need  not  be  fixed,  314 

when  it  may  be  recovered  back,  324 

form  of  averring,  332 

does  not  imply  warranty,  225 

unless  specified,  depends  on  apparent  value,  231 

vendor  cannot  sue  for,  after  rescinding,  272 

nor  after  suing  for,  can  he  rescind,  ib, 
49 


386  INDEX. 

VRICE— {continued. ) 

suit  for,  whether  a  rescinding  by  the  vendee  is  a  defence, 

273,  4 
whether  a  defect  in  the  thing  is  a  defence,  334  and  n. 

PRINCIPAL  AND  AGENT,  51 

when  liable  to  an  agent,  as  purchaser,  60,  61 

right  of  stoppage  in  transitu  between  and  agent,  208 

when  liable  upon  a  sale  to  the  agent,  316  n. 

PRINTING  OF  PARTY'S  NAME,  when  sufficient,  361 

PRIVITY  OF  CONTRACT,  necessary  to  suit  for  goods  bar- 
gained, &.C.,  324 

PRIZE,  sale  of,  25,  26 

PROMISSORY  NOTE,  whether  lien  lost  by  giving,  104 

PROOFS  OF  FRAUD  IN  SALE,  290 

PROPOSITION  AND  CONTRACT,  distinction,  13.  358 

PROVISIONS,  warranty  in  sale  of,  230.  248 

PUBLIC  AGENTS,  58 

PUBLIC  POLICY,  contracts  against,  309 

PUFFING,  170 

PURCHASE  BY  ONE  IN  ANOTHER'S  NAME,  whether 
fraudulent,  113 

PURCHASER,  from  executor,  &c.  65 

from  fraudulent  vendee,  who  is  a,  283 

a. 

QUANTUM  MERUIT,    in  case  of  deviation  from  contract, 

318  n. 
QUANTUM  VALEBANT,  suit  when  it  lies,  145.  335 
QUARANTINE,  effect  of,  upon  stoppage  in  transitu,  201 
QUI  FACIT  PER  ALIUM,  &c.,  51 

R. 

RATIFICATION,  of  act  done  by  an  agent,  55.  363,  4 

sale  by  partner,  70 
REASONABLE  TIME,  allowed  for  delivery,  131 


INDEX. 


387 


REASONABLE  PRICE,  law  implies,  144,  145 

averment  of,  332 
REASONABLE  AND  CURRENT  PRICE,— distinction,  145 

time  for  rescinding  sale,  274 
RECEIPT,  assignment  of,  349,  350 

and  use  of  goods,  sufficient  to  sustain  a  suit  for   goods 

sold,  &.C.  315 
parol  evidence  as  to,  16 
of  wharfinger,  may  be  indorsed,  83 
store-keeper,  delivery  of,  84 
ship-master,  when  to  be  given  up,  190  n. 
for  goods,  effect  on  stoppage  in  transitu,  193.  212 
RECOGNIZANCE,  whether  it  may  operate  as  a  payment,  149 
RECORDING  OF  MORTGAGE,  107  n. 
RE-EXCHANGE,  what  necessary  for,  9.  268 
REGISTER  OF  SHIP,  effect  of,  128  n. 
RELATION,  bill  of  lading  may  operate  by,  89 
RELEASE,  by  assignor  o(  chose  in  action,  342,  8.  353 
REMEDIES,  in  case  of  assignment  o(  choses  in  action,  351 
fraudulent  conveyance,  297 
sale,  312 
REMOVAL  OF  GOODS  SOLD,  by  the  vendor,  effect  of,  108 
REPRESENTATION  OF  AGENT,  binds  the  principal,  56, 
57 
whether  a  warranty,  232 

of  quality,  effect  upon  a  suit  for  the  price,  334  and  n. 
RE-SALE  BY  VENDEE— the  second  purchaser  liable  to  the 
vendor,  6,  7 
what  necessary  to,  32.  263.  267 
effect  of,  upon  stoppage  in  transitu,  218 
whether  a  suit  for  goods  bargained,  &c.  lies  after,  323 
RESCINDING  OF  SALE,  261 
by  vendor,  268 
by  consent,  32,  33.  261 
of  contract  by  infant,  49,  349 
Chancery  sale,  66 
contract,  none  after  execution,  93 
sale  by  auctioneer,  163 


388  INDEX. 

RESCINDING  OF  SALE— (continued.) 

and  stoppage  in  transitu,  distinction,  183 

of  sale  by  vendee,  190  n.  244.  251.  273 

effect  upon  stoppage  in  transitu,  204 

in  part,  267 

when  indeb.  assump.  lies  after,  310  n.  321 
RETRACTING  OF  BID  AT  AUCTION,  159.  278 
RETURN  OF  OFFICER,  how  far  conclusive,  11 

whether  necessary  to  give  a  title,  67 

goods  sold,  by  vendee,  251 

of  thing  sold,  or  exchanged,  when  necessary,  335.  271. 
273.  321 
REVOCATION  OF  AUTHORITY,  57 
RISK  OF  THING  SOLD,  is  in  the  vendee,  7.  8 


SALE,  of  choses  in  action,  338 

of  goods,  what,  under  St.  of  Frauds,  356 

and  proposal  to  sell,  distinction,  13.  358 

or  return,  contract  of,  17.  152.  316.  301  .323 

and  contract  to  sell,  distinction,  26 

by  mortgagee,  whether  it  is  a  payment,  149 

necessary  to  sustain  suit  for  goods  sold,  &c.  316 

bargained,  &,c.  322 
and  barter,  distinction,  316 
and  delivery  in  payment, — distinction,  317.  336 

SAMPLES,  delivery  of,  84.  96 

taking  of,  effect  on  stoppage  in  transitu,  203 
sale  by,  226.  241 

SAY,  meaning  of  the  word,  38 

SCHEDULE  ANNEXED  TO  WRIT,  suit  upon,  326  n. 

SECRESY,  is  evidence  of  fraud,  290.  2 

SECURITY,  absolute  bill  of  sale  may  stand  for,  292.  4 

SECURITIES,  taken  by  agent,  belong  to  principal,  64 

SEPARATE  MAINTENANCE,  sale  in  case  of,  45,  6 


INDEX. 


389 


SEPARATION,  when  necessary  to  a  sale,  32,  3.  115.  121. 195. 

323 
SERVANT,  not  assignable,  343 

when  he  may  bind  the  master,  53 
SET-OFF,  in  case  of  assignment  of  debts,  340  and  n.  342.  9. 

353 
SHARE  OF  SHIP,  delivery  unnecessary  to  sale  of,  128,  9 
SHARES,  sale  of,  on  execution,  67 
assignment  of,  340 
sale  of— St.  of  Frauds,  357.  360 
SHERIFF,  cannot  purchase  goods  sold  by  him,  68 
SHIP  UNFINISHED,  sale  of,  28.  127 
SHIP-MASTER,  liability  of,  59,  60 
sale  of  by  partner,  69 
abroad,  126 
SHIPMENT  OF  GOODS,  effect  on  stoppage  in  transitu,  192 
SHIPPING-NOTE,  delivery  of,  218 
SIGNING  OF  CONTRACT,  by  auctioneer,  160 

under  St.  of  Frauds,  what,  358.  361 
SLAVE,  sale  of,  4.  226.  238 

SMUGGLING,  contracts  connected  with,  306,  7.  9 
SNEE  V.  PRESCOT,  comments  upon,  188.  202 
SOLD,   meaning  of  the  word,  27 
SPECIAL  AGENT,  52.  6 
SPECIAL  CONTRACT,  when  it  must  be  alleged,  317.  8 

when  indkb.  assump.  lies  in  case  of,  320,  1 
SPECIALTY,  what  necessary  to  avoid,  335 
STAKEHOLDER,  auctioneer  is,  in  case  of  deposit,  164,  5 
STATUTE  OF  FRAUDS,  354 

not  applicable  in  case  of  delivery,  16 

applies  to  contracts  to  sell,  27 

delivery,  when  required  by,  75.  8 

whether  applicable  to  auctions,  160 

of  limitations,  effect  upon  lien,  182  n. 

against  fraudulent  conveyances,  289 

penal,  how  far  it  avoids  contracts,  303 

of  limitations,  when  U.  S.  bound  by,  352 

construction  of,  3-55 


390  INDEX. 

STOCK,  sale  of,  310.  357.  360 
STOPPAGE  IN  TRANSITU,  84.  188 

after  part-delivery,  83 

in  connexion  with  rescinding  of  sale,  263 
STORAGE,  vendee  liable  for,  268 
STORE-KEEPER'S  RECEIPT,  delivery  of,  84 
STUMP  AGE,  lien  for,  1S2 
SUB-AGENTS,  whether  allowable,  53 
SUB-SALE  AND  PARTNERSHIP,  distinction,  71 
SUBSEQUENT   CREDITORS,   sale   whether  void    against, 

293 
SUNDAY,  fair  on,  24.  303  n. 

sale  on,  311 
SUPPRESSIO   VERI,  282 

SURETYSHIP,  whether  consideration  for  a  sale,  292.  5 
SWINDLING,  what,  288  n. 
SYMBOLICAL  DELIVERY,  76 

T. 

TENANTS  IN  COMMON,  sale  by,  35.  78 

between — delivery,  90 

suits  between,  325  n. 
TENDER,  when  necessary,  313.  327,  8 

of  goods  sold,  where  sale  is  incomplete,  319 
THIRD  PERSONS,  delivery  necessary,  in  relation  to,  75 

sale  of  goods  in  possession  of,  89,  90.  Ill 

fraud  of,   which  of  two  innocent  parties  suffers  by,  302 

goods  delivered  to,  315  n.  319  n. 

contract  for  the  acts  of,  331  n. 
TIME  OF  DELIVERY,  34.  130 

does  not  affect  stoppage  in  transitu,  190 
TIME  OF  RESCINDING  SALE,  271.  4 
TIME  AND  PLACE  OF  DELIVERY,  damages  for  deviat- 
ing from,  337 
TITLE,  change  of,  by  operation  of  law,  II 

defective,  when  no  defence,  336 


INDEX,  391 

TORT,  money  received  by,  suit  for,  324,  5  and  n. 

claim  for,  not  assignable,  339  n. 
TRESPASS,  what  possession  will  sustain,  121 
TRUST,  is  evidence  of  fraud,  290,  1,2 

for  vendor,  what  is,  291 

express  and  implied,  ib. 
TRUSTEE,  sale  by,  64 

one  partner  is  a,  as  to  the  other,  72 
TWYNE'S  CASE,  289 

U. 

UNFINISHED  CHATTEL,  sale  of,  27.  115 
UNITED  STATES,  form  of  suit  by,  352 
UNSOUNDNESS  IN  HORSES,  what,  239,  240  and  n. 
UPSET  PRICE   AT  AUCTION,  158 
USAGE,  as  to  time  of  delivery,  131 

mode  of  delivery  must  conform  to,  181 

lien  by,  181  n.  186 

as  to  sale  by  sample,  243,  4 

for  warranty,  256 

V. 

VALUE,  assertion  as  to,  is  no  warranty,  227 

VARIANCE,  in  suit  upon  warranty,  246 
between  averments  and  proofs,  330 
of  thing  sold,  from  the  contract,  334,  5 
between  writings  given  to  vendor  and  vendee,  363 

VISIBLE  DEFECTS,  no  warranty  against,  230.  9 

VOID,  sale  may  be,  in  part,  3 

VOID  AND  VOIDABLE,  distinction,  48,  9 

VOLUNTARY  PREFERENCE,  what,  297 

W. 
WAGER,  contract  in  nature  of  a,  is  void,  310 


393  INDEX. 

WAIVER  OF  CONDITION.  88.  97.  9.  101.  102  n. 
time  and  place  of  delivery,  131 
lien,  185  n. 

stoppage  in  transitu,  197 
objection  to  thing  sold,  by  keeping  it,  274 
tort,  325  and  n. 
right  of  set-off,  349,  350 
WAREHOUSE,  arrival  at,  effect  on  stoppage  in  transitu,  198 
WAREHOUSEMAN,  cannot  sell,  64 

order  upon,  81 
WARRANTY,  223 

of  title,  25.  257,  8 
by  agent,  56 

partner,  70 
cannot  be,  after  sale,  255 
WEIGHING  OF  GOODS,  when  necessary  to  pass  a  title,  115, 

6,  7,  8.  121.  3,  4.  195.205 
WEIGHT,  meaning  of,  39 
WHARF,   delivery  at,  effect  upon  stoppage  in   transitu,    191 

198.  217 
WHARFINGER,  cannot  sell,  64 
order  upon,  a  delivery,  81 
receipt  of,  83 

notice  to,  not  to  deliver  goods,  202 
delivery  to — stoppage  in  transitu,  207 
WITNESS,  signing  as,  when  sufficient,  361 
WORDS  OF  WARRANTY,  what,  231 
WRECKED  GOODS,  sale  of,  26 


THE   END. 


ERRATA. 


P»g«  4,  Blh  line  from  top,  for  literally  read  liberally. 
"  18, 2d  "  "  hoU'm,for  vendee  reti.i  vendor. 
"   103,  3d     "       "  "        ,  "    C  reaJ  D. 

"  106,  8th  "       "     lop,  for  defendant's  \  ead  plaintiff '». 
"  123  tof>  line,  for  canrellage  read  canallage. 
"  138,  16th  line  from  top,  for  fixed  read  fired 
"177,  9ih      "      "     bottom,  for  and  a  read  and  </iOue:A  a. 
"  206, 16th     "      "        "       ,    "  consignor  read  contignee. 
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"  266,  10th     "      "     bottom,  for  vendor  rend  vendee. 
"  267,  I4th     "       '<        "       ,  "     vendee  read  vendor. 
"  286,  bottom  line,  for  void  read  is  void 
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